
    No. 451
    RESNICK v. PARYZEK
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 7756.
    Decided Nov. 22, 1926
    1223. VACATION — Where a motion to vacate a judgment is filed, the presentation of a valid defense is sufficient ground for vacating the judgment, and a refusal to do so is an abuse of sound discretion.
    941. PRACTICE & PROCEDURE — Where allegations constitute a valid defense on motion to vacate, truth or falsity of same are not to be considered in hearing the motion.
    First Publication of thU Opinion
    Attorneys — Gerald A. Doyle for Resnick; Artl & Smolka for Paryzek; all of Cleveland.
   SULLIVAN, J.

This cause comes into this Court on error from the Cleveland Municipal Court, wherein a judgment by default was rendered, and within term time a motion to vacate the judgment was made, supported by affidavits, asserting facts which constituted a valid defense, and also a counterclaim, and the court denying the application for vacation of the judgment, this cause is here on error, based upon the charge that the court prejudiced the rights of Resnick by an abuse of sound discretion.

Paryzek set up that the debt was not contracted by him, but that it was a debt against a corporation wherein Resniek was not even a stockholder, and in addition to this the defense of bankruptcy was alleged, wherein allegations were - made of the adjudication in bankruptcy, and that by reason thereof, there was a discharge of the indebtedness. It was further stated that there ,was n0 listing under the bankruptcy law as to the indebtedness.

The Court of Appeals held:

1. It has been held in the 19th Ohio page 291, that in the absence of fraud, a bankrupt omitting to list the creditor is nevertheless discharged from the indebtedness.

2. We are of the opinion that these allegations constituted a valid defense, and the question whether they are true or false, is not to be considered in a hearing upon a motion to vacate a judgment, because all that is required is that a valid defense in law be set up, as contra-distinguished from a defense in fact.

3.This court has frequently held that, where a motion to vacate a judgment is filed, the presentation of a valid defense is sufficient ground for vacating the judgment, and that a refusal to do so is an abuse of sound discretion. The court still holds these views and, therefore, the judgment of the lower court is hereby reversed and the cause remanded for further proceedings according to law.

Judgment reversed.

(Levine, PJ., and Vickery, J., concur.)  