
    No. 170
    BUSHNELL v. BIRNBAUM
    Ohio Appeals, 8th Dist., Cuyahoga County
    No. 4753.
    Decided Jan. 14, 1924
    677. JUDGMENT — Court may set aside default and permit answer without committing prejudicial error.
    465. ERROR. — Reviewing court will not reverse verdict as contrary to weight of evidence because evidence was conflicting.
   PER CURIAM.

Epitomized Opinion

First Publication of this Opinion

This was an action for damages arising out of a collision between plaintiff’s and defendant’s automobiles. Bushnell filed his action in the Municipal Court of Cleveland. No answer was filed by defendant, whereupon a default was entered. Thereafter, upon the application of the defendant, that default was set aside. A motion was filed to strike certain things from this answer, and was granted. The defendant was then given leave to file another answer, which was not done. Another default was then rendered and the case wa then sent into a room for the assessment of damlages. In the meanwhile the defendant sought to have an answer filed. The court set aside the default and permitted the filing of this answer. Exceptions were duly noted. The trial resulted in a verdict in favor of the defendant. The plaintiff prosecuted error. In sustaining the judgment of the lower court, the Court of Appeals held:

Attorneys — Cook, McGowan, Foote, Bushnell & Lamb, Cleveland, for Bushnell; Frank S. Day, Cleveland, for Birnbaum.

1. It is proper for the court to permit the defendant to file an answer setting- up his defense at any time before judgment, even though default has been entered and no error was committed by the lower court in setting-aside the defaults rendered by that court. While there was a sharp conflict in the evidence as to who was to blame for the accident, the lower court, having the witnesses before it, was better able to judge of the weight to be given to their testimony, and therefore this court cannot say that the verdict was contrary to the weight of the evidence.  