
    Resnick v. Paryzek.
    
      Judgments — Motion to vacate default — Truth of allegations of valid defense not considered, when.
    
    Truth of allegations of valid defense is not to be considered on motion to vacate default.
    (Decided November 22, 1926.)
    Error: Court of Appeals for Cuyahoga county.
    
      Mr. Gerald A. Doyle, for plaintiff in error.
    
      Messrs. Artl & SmolJca, for defendant in error.
   Sullivan, J.

This cause comes into this court on error from the municipal court of the city of Cleveland, wherein a judgment by default was rendered, and, within term time, a motion to vacate the judgment was made, supported by affidavits setting up facts which constituted a valid defense and also a counterclaim. The court denying the application for vacation of the judgment, the cause is here on error, based upon the charge that the court prejudiced the rights of the plaintiff in error by an abuse of sound discretion.

The defense made is that the debt was not contracted by plaintiff in error, but that it was a debt against a corporation wherein plaintiff in error was not even a stockholder, and in addition to this a defense of bankruptcy was set up, wherein allegations were made of the adjudication in bankruptcy, by reason whereof there was a discharge of the indebtedness. It was further stated that there was no listing, under the bankruptcy law, as to the indebtedness.

It has been held in Mitchell, etc., v. Singletary, Jr., 19 Ohio, 291, that in the absence of fraud a bankrupt omitting to list the creditor is nevertheless discharged from the indebtedness.

We are of the opinion that these allegations constituted a valid defense, and the question whether they are true or false is not to be considered in a hearing upon a motion to vacate a judgment, because all that is required is that a valid defense in law be set up, as contradistinguished from a defense in fact.

This court has frequently held, where a motion to vacate a judgment is filed, that the presentation of a valid defense is sufficient ground for vacating the judgment and that a refusal to do so is an abuse of sound discretion. The court still holds these views, and therefore the judgment of the lower court is hereby reversed and the cause remanded for further proceedings, according to law.

Judgment reversed and cause remanded.

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