
    Rabb, Admr., v. Board of Commissioners of Cuyahoga County et al.
    
      (Decided March 3, 1930.)
    
      Messrs. Cline é Patterson, for plaintiff in error.
    
      Mr. Ray T. Miller and Mr. David Ralph Hertz, for defendants in error.
   Sullivan, J.

This cause is here on error from the common pleas court of Cuyahoga county, in which, at the September, 1928, term, the plaintiff recovered a default judgment for $3,500, together with costs, against the board of county commissioners of Cuyahoga county. At the January term' following, a petition was filed to vacate this judgment, and upon hearing the judgment rendered by default at the September, 1928, term, was set aside, and it is to reverse this judgment that these proceedings in error are brought; the errors relied upon for reversal being that there were no statutory grounds for the vacation of the judgment and no valid defense presented or proved.

The foundation for the claim of valid defense is the statutory ground, which must exist before the court, at a succeeding term, can suspend or vacate a judgment then and there in full force and effect. The statutory grounds relied upon for the suspension or the vacation of the judgment are irregularity in obtaining the judgment, and unavoidable casualty or misfortune which prevented the defendants from defending the case.

From an examination of the record it appears that in the original suit service was made in conformity to law, and the process papers, after service upon the board of connty commissioners, were left with the then prosecuting attorney of the county, the legal adviser of the board, for the purpose of answering to the petition of plaintiff in error, who was plaintiff in the original suit, and to prepare whatever pleadings or defense as would be necessary and proper in the premises.

It appears that the judgment was taken by default, and, as before noted, this status existed until after the intervening of the subsequent term of court, when a petition to vacate the judgment was filed and a hearing had thereon, which resulted in the suspension and vacation of the judgment. The failure to plead or otherwise take such procedure as would be meet in the premises is the basis for the claim that there was irregularity in the obtaining of the judgment, unavoidable casualty, and misfortune resulting in the prevention of a defense being made.

At this juncture a proper consideration of the case demands that we consider the legal status of the plaintiff who obtained the judgment by default. During the term in which the default was rendered, the court having control of its docket had full power, sua sponte or otherwise, to suspend or vacate the judgment. This power was not only inherent in the court, but is established by a long line of authorities, and there is nothing that could take this power from the court during the term in which the judgment by default was rendered. This power and control over the judgment cease when the term is ended, and the court is powerless to interfere by way of vacation or suspension with the judgment except by strict conformity to the statute, and one of the reasons undoubtedly is that there should come a time when the judgment obtained by default at a preceding term might become imbued with a permanent character, and thus have the sanctity of a pronouncement of judgment that does not depend upon the mere will, discretion, choice, or judgment of the court which rendered the judgment by default. As soon as the court was bereft of the power which existed until the end of the term, then and thereupon the judgment of the plaintiff became a right that was vested, because it could not be molested by the mere whim of the court, and could only lose its force and virtue by operation of the statute, which had reference only to this new situation which accrued subsequent to the ending of the term of court wherein the judgment by default was pronounced. That vested right, bereft of the instability and uncertainty which characterized its existence during the term of court at which it was rendered, became the property of the plaintiff and had the same force and virtue under the law as if it were a judgment pronounced upon a verdict after a full trial and full proceedings had thereon. "When the term ended, the judgment was unreversed and unmodified, and because of the ending of the term and the crippling of the power of the court the judgment was infused with a new life, - and the only power which remained to the court that pronounced the judgment by default was to vacate it at a succeeding term, upon motion or petition founded upon statutory grounds (Section 11631, General Code), and unless these grounds existed the court was powerless to exercise any authority over the judgment, such as it could have done during the preceding term of its own will and volition.

Now, can the failure of the prosecuting attorney under the record at bar be called an irregularity in order to have it stand upon a statutory ground (Section 11631, paragraph 3, General Code) ? An irregularity is a departure in legal procedure from things which are regular. It is something by way of procedure which is unusual and irregular. The failure to plead or to do some act that would prevent a judgment by default was a requirement for something affirmative. It was an omission to do that which was regular in legal proceedings. It does not consist of an act that was a departure from the usual and regular procedure. It was an omission to perform an act, and thus in the nature of the case it could not create an irregularity, because that presupposes some act which in comparison with other acts is irregular in its nature, but no comparison can be made because of the absence of any act whatsoever. Thus we cannot conclude that there was an irregularity.

As to whether there was unavoidable casualty or misfortune (Section 11631, paragraph 7, General Code), the same reasoning applies. There would have to project from the record not only some facts which show a casualty or a misfortune, but it would also have to appear, at least as to the question of casualty, that it was unavoidable. The mere failure to follow the instructions of the board of county commissioners cannot be called a casualty, and therefore cannot be called an unavoidable casualty. A casualty is something in the nature of an accident; it is something unexpected; it is in the nature itself of a misfortune, and in a sense the two words are legally synonymous. If it were a casualty, there is no reason that appears in the- record that it was unavoidable. Forgetfulness is not in and of itself a misfortune, considering the case at bar; if anything, it is the basis of the misfortune. In any event the misfortune was not unavoidable, and, while there is some question as to whether the word “unavoidable” applies to the word “misfortune” as it does to “casualty,” yet in our judgment that is the significance and legal effect of the word as it stands alone. There is nothing in the record that shows what the misfortune was, or that there was any misfortune which resulted in the judgment by default, such as appears in Lazarus v. Cleveland Household Supply Co., 23 Ohio App., 15, 154 N. E., 343, where the defendant left his process papers at the office of his attorney during his illness, which was of such a nature that it was the cause of the entering of the default during the illness. We do not think the holding in that case is applicable to the record at bar. It is well settled law in this state that at a subsequent term a judgment cannot be vacated unless the record shows that statutory grounds, in fact as well as law, exist. One cannot plead unavoidable casualty or misfortune, or irregularity, unless the facts justify such characterization, and in the case at bar there are no facts which are co-related to any of these terms issuing from the statute as grounds for the vacation of judgments.

When we come to the question as to whether there is a valid defense, it is not worth while to discuss it, because there being no statutory grounds for vacating the judgment, the court would be powerless to set it aside simply because there is a valid defense, a step in the procedure which follows upon the heels of a judgment by the court that statutory grounds for the vacation of the judgment exist and are proven. Thus it is unnecessary to go into the question whether or not the act of the Legislature applies to the facts incorporated in the record at bar, and upon that question we offer no conclusions in the present state of the record, because this court can in no wise hold, within the limitations of its judicial power, that a valid defense in the absence of statutory grounds is sufficient basis for the vacation of the judgment at bar.

Holding these views it is our unanimous judgment that the court committed'error in overruling the demurrer to the petition to vacate, because, if the facts alleged do not in law constitute irregularity or unavoidable casualty or misfortune, then the case i& demurrable without considering the question whether the legislative act applies to the facts of the present record; and it is our further conclusion that the court erred in vacating the judgment for the reasons which are herein given.

Thus holding, the judgment of the common pleas court vacating the judgment rendered by default is hereby reversed, and the cause is remanded with instructions to sustain the demurrer of plaintiff in error.

Judgment reversed and cause remanded.

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