
    Lazarus et al., Partners, d. b. a. Lazarus & Rosenfeld, v. The Cleveland Household Supply Co.
    
      Judgments — Vacating default after term — Section 116S1, General Code — Unavoidable casualty or misfortune .preventing party from prosecuting or defending — Attorney ill when summons delivered by client and judgment entered — Valid defense also to be tendered — Inattention by attorney not excused where party negligent.
    
    1. Inattention to professional duty on part of attorney with, reference to pending litigation, whereby default judgment is entered, will not be excused because party himself is negligent.
    2. In addition to negligence involving unavoidable casualty and. misfortune, within Section 11631, Subd. 7, General Code,, providing for vacation of judgment, valid defense ‘ must be tendered.
    3. Where defendant, served with process, left summons at, office of his attorney during latter’s illness and during' which illness default was entered, and where defendant had probable defense, setting aside default, under Section 11631, Subd. 7, General Code, for unavoidable casualty and misfortune, held not abuse of discretion.
    (Decided October 4, 1926.)
    
      Error: Court of Appeals for Cuyahoga county.
    
      Mr. J. M. Andrus and Messrs. Rothenberg & Smith, for plaintiffs in error.
    
      Messrs. Bernsteen é Bernsteen, for defendant in error.
   Sullivan, J.

It appears that the attorney in charge of the case in the municipal court for the defendant in error, the Cleveland Household Supply Company, at the time of the service of summons in the original action, upon the filing of the statement of claim, was ill and confined to bis home, and that his illness was of such a serious nature that he could not, without hazard to his health, represent and protect the interests of Ms client in the preparation and defense of its case. The summons was brought to his office, and the party bringing the same was notified that defendant’s counsel was unable, by reason of illness, to attend to the case. Thereupon the papers were left at the office of counsel. Under these circumstances the judgment by default was taken. At the succeeding term it was discovered by counsel for the Cleveland Household Supply Company that a levy had been made upon the goods and chattels of his client, by reason of the issuance of a praecipe upon the judgment obtained by default, and thereupon the petition to vacate was filed. In said hearing, the illness aforementioned indisputably appeared, and the court, having been advised of a valid and meritorious defense, vacated the judgment rendered at the former term and overruled a demurrer to the allegations of the petition. Exception was taken to this ruling, and hence arise these proceedings in error.

It is claimed by counsel for plaintiff in error, and is sustained by the authorities, that the default of counsel does not excuse the negligence of the party to the action, who has full knowledge of the circumstances which resulted in the judgment by default. These authorities are Commissioners v. Village of Cambridge, 7 C. C., 72, 3 C. D., 669; Huntington & McIntyre v. Finch & Co., 3 Ohio St., 445; Barrett v. Queen City Cycle Co., 179 Ill., 68, 53 N. E., 550; Yates v. Monroe, 13 Ill., 212; Blake v. Stewart, 29 Ind., 318.

Coming to the Ohio authorities, in Fliedner v. Rockefeller, 12 Weekly Law Bulletin, 20, 9 Ohio Dec. Reprint, 266, passed upon by the district court, there is a holding to the effect that a party seeking the vacation of a judgment by default must show not only a good defense, but that there was no negligence on his part or on the part of his attorney, that he exercised due diligence in attempting Ms defense, and that the casualty was unavoidable.

Burrell v. Anchor Fire Ins. Co., 3 N. P. (N. S.), 321, 15 O. D. (N. P.), 303, is also cited as basis for the reversal of the judgment, because it was held in that case that, where the attorney relies upon the clerk of the court to keep him informed as to his case, he makes the clerk his agent, that the clerk’s default is the attorney’s default, and that a judgment entered in the absence of the defendant and Ms attorney will not be set aside because of the negligence of the attorney in not keeping informed as to the progress of the case, or because of the failure of one of his own employes or of the clerk of the court to inform him as to the status of the case. This holding was affirmed by the circuit court in 1905.

There are many authorities to this effect, so that the law can be stated in a sentence, not only in Ohio, but elsewhere, that the negligence of the party himself will not excuse any inattention to professional duty on the part of the attorney with reference to litigation pending in the courts. It is also well settled that, in addition to negligence involving unavoidable casualty and misfortune, a valid defense must be tendered so that the court may not perform a useless act.

Notwithstanding all these authorities, we must apply ourselves to the status as it appears from the record in the instant case, and from an examination of same it is clear that the attorney was ill, that there was a probable defense, and that the summons having been left at the office of the attorney during his illness by the party to the litigation, the latter had. performed what was reasonably required of him, to wit, the transfer of the process served upon him to the office of his attorney, thereby giving that office full knowledge of the pendency of the lawsuit and the requirements of the process issued thereunder.

It appears from the record that the attorney, who was ill, had exclusive charge of the business of the defendant in error, and, when the report of the litigation was made to the office by the client, and the process papers left with the person in charge, what more could reasonably be expected from the party to the lawsuit, when we take into consideration the modern method in vogue with respect to pending litigation? In other words, wherein was he culpable? Had he retained the summons and neglected to inform those in charge of his attorney’s office, it is clear that he would have been negligent, and the negligence would apply to his attorney, but the actions of the defendant in error are entirely contrary to such a situation. Illness of counsel has always been considered a sufficient reason for the passing or the continuance of a case, and, when such a condition exists, it would appear that judgment by default is an extreme measure. There is no question but that the illness was a casualty and a misfortune, and, in our opinion, th%re is no evidence that it was not unavoidable, ana it clearly appears to be the reason why the defendant in error was not properly represented in court. Add to this circumstance the fact of a probable defense, and it seems clear that under all the circumstances of the case the court did not abuse its discretion, and did not set aside the established principle of procedure, when it granted the petition to vacate the judgment. Courts must have respect for their own rules pertaining to procedure, and must conform to established legal authority with respect to the vacation of judgments, but, where it appears, as in this case, that the defendant in error and its counsel were at all times acting in good faith, and that defendant in error would be barred from its day in court because its attorney was too ill to attend to his client’s business, to refuse to vacate the judgment might tend to a miscarriage of justice.

If it appeared from the record that delay, strategy, or bad faith was exercised, our holding, under the authorities, would be entirely different, but, under the record in this case, we are of the opinion, under Section 11631 of the General Code, that unavoidable casualty and misfortune which prevented the party from defending project sufficiently from the record to warrant the court in deciding that there was no prejudicial error in the ruling of the court below, and that to decide otherwise might result in gross injustice. On the other hand, a hearing upon the merits of the case ought to work no injury to either party, except as it is deducible from the actual facts as they may arise in the record of the case.

Holding these views, the judgment of the lower court is hereby affirmed.

Judgment affirmed.

Levine, P. J., and Vickery, J., concur.  