
    STAR BUILDING & LOAN CO v SMITH CO
    Ohio Appeals, 4th Dist, Lawrence Co
    Messrs. Irish and Riley, Ironton, for plaintiff in error.
    A. J. Layne, Ironton, for defendants in error.
   MAUCK, PJ.

It is admitted that the judgment by default was entered without evidence on the theory that the failure to traverse the petition amounted to a confession of the damages alleged and in the amount claimed. This procedure is not warranted by the statute. If the petition made a cause of action it was in tort. It was not such an action as is embraced in §11383 GC. A default might have been entered as provided in §11592 GC and damages assessed as provided in §11593 GC, but admittedly this was not done. There resulted consequently an irregularity such as is provided for in the third paragraph of §11631 GC. A motion for the purpose of opening up the judgment was sufficient, and this was, in legal effect a motion though styled a petition. The trial court was right in opening up the judgment. Lemieux v Kountz, 107 Oh St 84.

Judgment affirmed.

MIDDLETON and BLOSSER, JJ, concur.  