
    Van Ingen v. Berger.
    
      Order of Cincinnati superior court — Suspending execution' in a default judgment — Until trial of the case on its merits — Is Anal order, when — Section 6707, Revised Statutes — Rule of court cannot render nugatory a valid statute — A default judgment cannot he suspended — On motion for alleged irregularity, when — Effect of failure of clerk to note judgment — Court procedure.
    
    1. An order by the superior court of Cincinnati, that a default judgment rendered by the same court at a previous term be suspended and execution thereon stayed until the case should be tried on its merits, and granting leave to defendant to file answer, is an order affecting a substantial right in a summary application after judgment, and is a final order within the meaning of section 6707, Revised Statutes, from which error may be prosecuted. (Hettrick v. Wilson, 12 Ohio St, 136; Braden v. Hoffman, 46 Ohio St., 639.)
    2. A valid statute of the state cannot be rendered nugatory or materially modified by a rule by one of the courts of the state, and if a rule sought to be enforced by any of the courts is found to be in conflict with such statute, the rule will be disregarded.
    3. A judgment by default, rendered by the superior court of Cincinnati, upon default, in every way regular on its face, cannot be suspended nor execution thereon stayed by that court on a motion filed at a subsequent term for an alleged irregularity in obtaining such judgment where such irregularity consists solely in the failure of the'clerk to note such judgment on' his appearance docket, and of the plaintiff to give notice thereof in the Court Index, a newspaper,' for three successive days, notwithstanding both such acts purport to be required by a rule of that court.
    (No. 12166
    Decided June 7, 1910.)
    Error to the Circuit Court of Hamilton county.
    On November 14, 1908, the plaintiff in error, Edward H. Van Ingen, commenced an action in the superior court of' Cincinnati to recover upon an account for goods sold and delivered. Summons was thereupon duly served on the defendant. The petition was faulty in that it failed to set forth a .copy of the account and make it -a part of the petition. To correct this omission an amended petition was filed November 28, 1908, of which due notice was thereupon given. Thereafter, on December 28, 1908, the court entered the following judgment:
    “This cause coming on to be heard upon the amended petition and the evidence, the court finds that the defendant, Lizzie Berger, has been duly served with summons, and is in default, and that the allegations of the petition are confessed by her to be true, and are true, and that she is indebted to the plaintiff in the sum of one thousand seven hundred and seventy-three and 24-100 ($1,773.24) dollars with interest thereon from April 28, 1908.
    ‘Wherefore it is ordered and considered that the plaintiff, Edward H. Van Ingen, recover of the defendant, Lizzie Berger, the sum of $1,837.96, and the plaintiff’s costs herein.”
    At the subsequent term of the court, to-wit, January 9, 1909, the defendant filed a motion to set aside the judgment for irregularity in obtaining it, for improper conduct in procuring it, and because defendant has a valid defense, and that the delay in filing proper pleadings was caused by plaintiff. On February 20, 1909, an amended motion was filed, setting out the grounds of irregularity as follows:
    “Said defendant was not in default until after December 26, 1908, and three days had not elapsed as required by the rules of the said court, nor had notice of said default been published for three days in the Court Index as required by the rules of said court, and a notice had appeared in the Court Index, the court organ of said court, on December 23d, 24th, 25th, 26th, 27th, 28th, 29th and 30th that no defaults would be taken after December 22, 1908, and no summons had been issued upon the amended petition filed herein.” Also, repeating that defendant has a valid defense.
    These motions were heard March 8, 1909, on evidence, and the court, finding that there was an irregularity in obtaining the judgment by default, and that the answer tendered by defendant showed a valid defense, ordered and adjudged that the judgment of December 28, 1908, be suspended and execution thereon stayed until the case should be tried on its merits, and with leave to defendant to file an answer, which was done. It is shown by the court’s special findings of facts that the irregularity consisted in the fact that the clerk did not note the default upon the amended petition upon his appearance docket, nor was notice of the default given in the Court Index, as is required by Rule 16 of the rules of the court. Also that the following was published in the Court Index from December 23, 1908, to December 30, 1908: “Notice — -Defaults. There will be no more defaults granted this term.” But the notic-e was not caused to be published by the superior court. Rule 16 is shown by the bill of exceptions as follows :
    “If a party neglect to file the proper pleading within the time ■ provided by statute or expiration of leave granted to amend, where no amendment has been filed, he shall be held to be in default. The clerk shall note the fact of such default on his appearance docket, and notice thereof be given in the Index for three successive days; after which the cause may be proceeded in to judgment. The default may be set aside on such terms as the court may impose, and the court may either order the proper pleading filed forthwith or may give further time. If a judgment has been entered upon the default, it shall not be set aside unless, at the same term of court, the party against whom the judgment was rendered present and offer to file the proper pleading in the case, together with an affidavit of the party or the professional statement of his attorney reduced to writing, setting forth that there is a meritorious cause of action or defense, and the facts showing the cause of delay in pleading; in which case the court may set aside the default upon such terms as to costs as to the court may seem just, and- shall order the pleading, for want of which such default existed, to be filed forthwith. No default judgments will be entered during the vacation months, or at ány time except during regular sittings of the court in term.”
    The court’s order suspending the judgment was based wholly on the alleged irregularity above stated.
    Upon error by the plaintiff to the circuit court, the judgment of the superior court suspending the judgment of December 28, 1908, was affirmed. To reverse these judgments is the purpose of this proceeding.
    
      Mr. Charles B. Wilby and Mr. Mitchell Wilby, for plaintiff in error.
    
      Messrs. Hoffman, Bode & Le Blond, for defendant in error.
   Spear, J.

It is suggested by counsel for defendant in error as a preliminary question, although not strenuously urged, that the entry of the superior court complained of is not a final order such as could .be the predicate of a proceeding in error. The circuit court evidently thought otherwise. Had that court agreed with this claim of counsel its judgment would have been a dismissal of the petition in error instead of an affirmance. In this conclusion we are in accord with the circuit court. The order does affect a substantial right in a summary application after judgment, and in that sense is a final order. (Section 6707, Revised Statutes.) But for such order the plaintiff would have been entitled in law to the immediate fruits of his judgment. Of this right the order deprived him. Hettrick v. Wilson, 12 Ohio St., 136; Braden v. Hoffman, 46 Ohio St., 639.

As' to the court’s control over its journal, and the judgments and orders thereon, the general rule is well settled. It is that during the term the discretionary power to vacate or set aside its judgments is ample,' but that discretionary power ends with the term, and the power to set aside a judgment on a motion made after the term is governed by settled principles, to which the action of the court must conform. Huntington & McIntyre v. Finch & Co., 3 Ohio St., 445. This rule of court is not disputed, nor is it disputed that' courts have power to make rules of practice which are consistent with the law. The real question in the case, therefore, relates to the effect of the failure by plaintiff and the clerk to comply with the court’s rule known as Rule 16. This question, reduced to its last analysis, is whether or not the existence of Rule 16 and the failure of the clerk and the plaintiff to observe its requirements, deprived the trial court of power to render the judgment of December 28, 190.8? In other words, does the statute respecting the entry of judgment by default prevail; or, where the two provisions are inconsistent, does the rule prevail ?• The text of the rule is given in the statement which precedes. The statute, section 5133, Revised Statutes, is as follows: “In an action upon an account or written instrument for the payment of money only, or in foreclosure, judgment may be entered at any time during the term after the defendant is in default for an answer; but the court may, for good cause shown, give further time for answer.” It would seem not to require argument to show that the statute and the rights of parties under it cannot be abridged by a rule of court, and if a rule is framed so as to defeat or materially restrict the clear purpose of the statute, such rule cannot be held valid. It is insisted by counsel for defendant in error that the word “may” in the above section, and the last .clause respecting the giving of time to answer, indicate that the rendition of judgment or its refusal is discretionary, and that the rule requiring three days’ notice of default in the Co%irt Index is not an abuse of discretion. This proposition, so far as it relates to discretionary power, or at least to the extent that the action of the court involves the exercise of some discretion, may be conceded, for it is held in Dallas v. Ferneau, 25 Ohio St., 635, that where judgment is rendered on default, in an action on an account, without proof of the plaintiff’s claim, there is no error for which the judgment will be reversed, the requiring of such proof, on failure to answer, being a matter within the discretion of the court. But this does not seem to advance the argument of counsel in this case. If the court possessed discretion to allow or refuse judgment on default, and might have required proof of notice in the Court Index before allowing it, it then exercised its discretion in favor of the plaintiff; it rendered the judgment. If the court had required compliance with Rule 1<5 before rendering the judgment, and the plaintiff were complaining of that, we would then have the question which counsel argue. The findings of the trial court and entry of judgment are -explicit. They apparently show the right of the plaintiff to a judgment by default precisely as it was rendered. If it was the absolute duty of the court, irrespective of any rule of court, upon plaintiff’s demand for a judgment, to render such judgment, then of course the rule could have no effect upon the situation, while if the court had discretion to refuse plaintiff’s demand, or comply with it, it could not be deprived of that discretion by a rule of court unless the rule is in law superior to the statute. We think it is not. To hold that it .is superior would be to hold that a court is superior to the law, and by a rule can make a special rule of law for the city of Cincinnati, upon a subject of a general nature, different from the law prevailing in other sections of the state, a power which has been denied to the general assembly itself.

The rule is attacked as being invalid. We are not called upon to discuss this question, as it is not presented by the record. Whether or not, as a guide to the exercise of proper discretion in entering judgments by default, the rule is or not a reasonable one maj'- be properly left for decision until a case arises presenting the question.

The publication in the Court Index of notice that no more defaults would be granted during term is of no signification whatever upon an)r view of the case. The notice had not been directed by the superior court and could not apply to the business of that court. Nor could the failure of the clerk to note the default upon the appearance docket deprive the plaintiff of a right given by statute, the plaintiff being in no wise responsible for such omission.

We are of opinion that the record fails to show any irregularity in the rendition of the default judgment such as is contemplated by section 5354, Revised Statutes, which gives to the court after term authority to vacate or modify its judgments, and that the judgment of the superior court of March 8, 1909, suspending the judgment of the preceding term, was and is erroneous, as also is that of the circuit court affirming the judgment below. Both judgments will be reversed and final judgment rendered for plaintiff in error.

Reversed.

Summers, C. J., Crew, Davis, Shauck and Price, JJ., concur.  