
    Ralston et al v. Wells.
    
      Judgments — When fraudulently procured, how vacated — Practice.
    1. Representations made to the court by counsel of a party asking the entering of a judgment in the absence of counsel for the party against whom judgment is asked, to the effect that such counsel has consented to the entry of judgment, if false, do not constitute a mere irregularity, but a fraud.
    2. Where judgment has been obtained by reason of such representations, claimed to be false, the proper proceeding to procure a vacation of it is by petition under section 5358, Revised Statutes, and not by motion under section 5357.
    (Decided April 19, 1892.)
    Error to the Circuit Court of Defiance county.
    In an action brought in the court of common pleas by John Wells against Joseph Ralston and Christian P. Seibert, to recover damages for selling Wells’ property by Seibert, as constable, on an execution in favor of Ralston, by consent, at the February term, 1886, the issues were ordered referred to a referee. A trial was had before the referee, wbo filed his report, finding defendant Seibert liable to-Wells in the sum of $209.80, and that judgment should be rendered against Seibert and in favor of Wells for that sum; and that Ralston was not liable to Wells, and should be dismissed. A motion was soon thereafter filed by ■Wells for confirmation of. and judgment on the report, and, at the February term, 1887, of the court, no exception to the report having been filed, a judgment was entered confirming the report of the referee and rendering judgment in favor of Wells as against Seibert. No finding was had or judgment rendered against Ralston.
    During the vacation following a motion was filed to set aside and vacate the judgment as irregularly obtained and inadvertently rendered, the grounds being: 1. The judge was interested in the event of the suit and rendered judgment by reason of the statement of plaintiffs counsel made to him in the absence of defendants’ attorney, to the effect that rendition of such judgment was assented to by defendants’ attorney, which statement was not true, and but for which judgment would not have been rendered. 2. The report of the referee in law required judgment for defendants instead of for plaintiff, and the judgment was rendered inadvertently, and without having read, or having heard read, the report.
    At the May term, 1887, (held by the same judge who entered the judgment), the motion was heard upon affidavits, to the reading of which Wells objected and excepted. After which affidavits were offered by Wells and read in evidence. The court found that the judgment of the February term was inadvertently rendered by the court, the judge not being competent to try the cause, because he had been consulted by one of the parties as an attorney for him, and acting under the mistaken impression that there was no controversy between the parties, and that all of said parties consented and were willing that the said judgment should be entered on the report of the referee. And the court finding that the parties have a right to a hearing on the report by an impartial and disinterested judge, it was ordered that the judgment be set aside and vacated, and the clerk ordered to reinstate the cause upon the' trial docket for hearing upon the referee’s report. Motion for new trial by Wells was overruled.
    To all of which Wells, by counsel, excepted, and a bill of exceptions was duly taken setting out all the evidence. The bill shows that some time after the report was filed counsel for Wells called up the case and asked judgment on’ the report. The judge asked counsel if opposite counsel was willing and satisfied, to which counsel made answer that he had seen counsel and that he was willing and satisfied, and that it- was fully understood that the report should be confirmed. Thereupon the court confirmed and entered up judgment on the report. The bill further shows the introduction ot evidence by defendants, by affidavits, tending to.prove that no consent was given by defendants or their attorney, to the rendition of the judgment, and of evidence by Wells, by affidavits, tending to prove that consent was given to such judgment. But no evidence was offered tending to show that the judgment was rendered by inadvertence, nor any evidence tending to show that it was obtained in any way other than as stated above.
    On error to the circuit court by Wells, the judgment of the May term, vacating the previous judgment, was held erroneous, and was reversed.
    
      Henry Newbegin, for plaintiff in érror.
    
      Harris & Cameron, for defendant in error.
   By the CoukT:

The judgment of reversal by the circuit court was right for several reasons.

The case made upon trial of the motion to vacate showed that the judge was incapacitated to hear the motion. He had been of counsel for Ralston in the matter involved. True, he entered the judgment sought to be vacated, acting on the belief that it was by consent. But his power as trial judge to correct the journal ended with the term, and the judgment then remaining was valid until set aside, in a proper proceeding, by a court competent to try the question whether the judgment had been entered by consent or not, and any further questions which might arise.

If the statement of the counsel for Wells to the court, which induced the judgment, was untrue, it was not a mere “irregularity,” not “the want of adherence to some prescribed rule or mode of proceeding,” but was a fraud upon the court as well as upon justice, a “fraud practiced by the successful party in obtaining judgment.” Hence, the proper proceeding to procure a vacation of the judgment so obtained was not by motion under section 5357, Revised Statutes, but was by petition, verified by affidavit, under section 5358. To a charge of fraud thus made the 'opposite party could have an opportunity to raise an issue by answer, and have that issue tried in a manner which would give a fit and convenient time to cross-examine witnesses, and for a full trial. This could not be accorded on the hearing of a motion supported by affidavits only.

In any event, if defendant showed ground to vacate, the court should have adjudicated no further than to determine that question, for there still remained to be heard and passed upon the further question whether the right judgment had not, after all, been rendered. And, until that should be determined adversely to the plaintiff, the judgment would stand. Sections 5359 and 5360, Revised Statutes, and Braden v. Hoffman, 46 Ohio St., 639.

Judgment affirmed.  