
    Ramsey v. Holland.
    (Decided October 17, 1929.)
    
      Messrs. Burch, Bacon & Denlinger, for plaintiff in error.
    
      Mr. Harry Nusbcmm, for defendant in error.
   Lemert, J.

The parties in this case stand in an order the reverse of that held in the court below.

The action arose out of a collision on the McDonaldsville road occurring between the parties hereto on the 1st day of January, 1928, for which the defendant in error, E. E. Holland, brought a civil action in the court of common pleas of Stark county, Ohio, for damages to his automobile in the amount and to the extent of $170, against the plaintiff in error, J. R. Ramsey, a resident of Summit county, Ohio.

After service was obtained the plaintiff in error filed an answer and cross-petition for the sum of $746.35 for damages done to his car, due to the alleged negligence of the defendant in error in operating his car.

The case, after being at issue for some time, was regularly assigned for trial November 13, 1928, the plaintiff in error being advised by the regular assignment sheet that said case was assigned on that day and date, although the hour for which the same was assigned did not appear in the assignment sheet; nor was any notice other than the assignment sheet received by counsel for plaintiff in error, it being the first or sixth case for the day, appearing in the regular assignment.

The notice given to the plaintiff in error’s counsel stated in substance that all motions were to be heard at 9:30 o’clock a. m., Monday morning, and regular trial work to begin at 10 o’clock. No other hours were mentioned or designated. On the day for the trial the defendant in error appeared before the court promptly at 9 o’clock a. m., with his witnesses and counsel, and some time between the hours of 9 and 9:30 a. m. obtained a judgment against the plaintiff in error.

Counsel and witnesses for the plaintiff in error appeared promptly at 9:30 a. m. A journal entry had not been drawn giving judgment up to the time of the arrival of plaintiff in error and his counsel and witnesses. All witnesses and all parties on both sides, counsel, and court, were either in the courtroom or in the corridor leading to the courtroom at 9:30 a. m. when plaintiff in error, finding a judgment had been rendered against him, asked leave of court to present his evidence by reason of the fact that he had misunderstood the hour for which the case had been assigned, which the court in his discretion refused to do, and then instructed counsel for the defendant in error to prepare his journal entry, giving judgment for him in the sum of $150 and dismissing the plaintiff in error’s cross-petition, which was accordingly done, all being done over the objection and exception of plaintiff in error.

Plaintiff in error complains that there was abuse of discretion in rendering judgment, on the part of the court, and irregularity in obtaining judgment on the part' of the prevailing party, which prevented this plaintiff in error from having a fair trial, or any trial whatsoever; that the rules of the court made and provided for in such instance were not adhered to; and that as a result of the court’s decision a great hardship has been placed on this plaintiff in error, due to no fault on his part.

Although there are other errors complained of in the petition in error and in the motion for new trial it is upon the above question that the plaintiff in error relies chiefly in claiming that there was an abuse of discretion on the part of the court.

Abuse of discretion has been defined as some act done or step taken by the court in person, or upon request, or by an officer of the court, which is not according to the regular course of proceeding, by which a party is deprived of the benefit of defense without fault on his part. Commrs. of Guernsey County v. Village of Cambridge, 7 C. C., 72, 3 C. D., 669; Sherwin-Williams Co. v. Globe Rutgers Fire Ins. Co., 20 C. C. (N. S.), 151, 154, 31 C. D., 248.

The true rule as to when such abuse of discretion by an inferior court may be made subject to review by a superior court seems to be that the abuse must be shown, and also a serious injury resulting to the party abused. Where the rules of court have not been followed by the court in rendering a judgment, and the party aggrieved is deprived thereby of trial, he is not in default by his own appearance, and the judgment is erroneous. Star Piano Co. v. Burgner, 89 W. Va., 475, 109 N. E., 491.

Where a court has adopted valid rules for the conducting of its business, litigants may rely upon the court conducting its proceedings in conformity with such rules, and a judgment rendered in violation of a valid rule is properly set aside upon motion by the party injuriously affected thereby. And where a defendant is excluded from participation in a trial, defendant is entitled to have the judgment vacated as a matter of right.

If there has been an abuse of discretion shown, resulting in a serious injury to a party, the judgment obtained should be vacated.

As the foregoing cases and conclusions w'ould indicate, where there is an abuse of discretion on the part of the trial court, and there has been serious injury resulting to the aggrieved party, a court should review the findings of the lower court.

. We note in the present case, as shown by the affidavit attached to the bill of exceptions, that the plaintiff in error only received notice as it was set forth in the assignment sheet, and the earliest hour that appeared on said assignment sheet was 9:30 a. m. Relying upon this fact, certainly the plaintiff in error should not be penalized for failure to arrive at an earlier hour, more particularly when he arrived at the earliest hour set forth in the notice received by his counsel, and he certainly had the right to rely on the rules of the court, which, among other things, provided that before a default judgment could be taken counsel’s office should be called by the clerk. ''

But we note further in this case that, not only was judgment given to defendant in error for approximately the amount of his claim, but the cross-petition of the plaintiff in error was dismissed, thereby preventing him from recovering or having any trial whatsoever.

Therefore, taking into consideration the facts and circumstances hereinbefore referred to, we believe in this case that there was an abuse of discretion on the part of the court below. We find and believe that it was such nn abuse that the judgment obtained by the defendant in error and the judgment rendered against plaintiff in error should be, and the same hereby are, set aside, and the parties are given the opportunity of being heard in court.

Therefore the judgment of the court below will be reversed.

Judgment reversed.

Houck and Shebick, JJ., concur.  