
    Newman v. Desnoyers et al.
    
      Vacation of judgment — Section 5360, Rev. Stat. — Order for vacation may be erroneous but not void, when.
    
    Although an order for the vacation of a judgment rendered at a former term without adjudging that there is a valid defense to the action in which the judgment was rendered is erroneous in view of the requirement of section 5360, Revised Statutes, it is not void.
    (Decided May 7, 1901.)
    Error to the Circuit Court of Cuyahoga county.
    The record before us was made in the circuit court where the case was tried on appeal. It was a suit brought by the defendants in error against Clara Newman et al., to quiet title to certain real estate, being a lot in the city of Cleveland. In her answer and cross-petition Mrs. Newman denied the title of the plaintiffs below and set up a lien by virtue of a mortgage executed to her by one Joseph Desnoyers, June 24, 1894, to secure the payment of his promissory note then executed to her, and she prayed for a decree of foreclosure upon her mortgage. The record admits that Joseph was the owner of the lot at the time of the execution of her mortgage unless his title was divested by a judgment of the court of common pleas entered on the 13th of November, 1893, in case No. 46212 brought by the plaintiffs below against said Joseph. The record in that case was introduced by the plaintiffs below upon the trial of the present case. From that record it appeared that the plaintiffs below brought suit against Joseph for the specific performance of his promise to convey the lot to them, and that on November 13, 1893, he being in default for answer, a decree in favor of the plaintiffs Avas entered in accordance with the prayer of their petition; and it was ordered that Joseph should, Avithin sixty days, convey the premises to them by good and sufficient deed. The decree also provided that if he failed to execute.-such deed the decree should have the force of such conveyance. The deed so ordered was never executed. Thereupon Mrs. Newman introduced the record in case No. 47950 of the same court in which Joseph Desnoyers filed a petition against the plaintiffs in the former case for the vacation of said judgment, alleging that it was obtained by fraud of said plaintiffs, allegations of material fraud being set out in his petition. His petition also alleged facts which, if true, would constitute a meritorious defense to the suit in which they had recovered their judgment against him. To this petition for the vacation of the former judgment these defendants in error answered by denying all of its material averments. On the 30th of March, 1894, the court disposed of the issues so joined by the following entry upon its journal: •
    “This cause came on to be heard on the pleadings and testimony, the same being duly advanced and on due consideration the judgment in said cause No. 46212 being Exilda Desnoyers et al. v. Joseph Desnoyers, is opened up and modified and the defendant in said cause No. 46212 has leave to plead therein by motion or otherwise by March 31, 1894. To all of which defendant herein excepts. Judgment is rendered against said Joseph Desnoyers for the costs of this action.”
    Joseph then filed a motion in case No. 46212 asking the court to strike from the petition redundant and irrelevant matter, and to require the plaintiffs to make said petition “more definite and certain” in material respects. This motion was sustained April 12, 1894. Thereafter, no amendment to the petition having' been made, Joseph filed a motion asking that the petition be stricken from the files. This motion was overruled, and the plaintiffs were given leave to file an amended petition by a day named by the court. On May 21, 1894, no amended petition having been filed pursuant to such leave, Joseph filed another motion to strike the petition from the files, of which motion the plaintiffs had notice. On May 24, 1894, the court sustained this motion, the following entry being made upon its journal:
    “The motion by defendant to strike the petition from the files is heard and granted at the plaintiff!» costs, for which judgment is rendered against said plaintiff. Said petition is stricken from.the files, to all which ruling and order said plaintiffs except.
    On the trial of the present case in the circuit court it was admitted by all the parties that no action was taken in the former case after the order striking the petition from the files. It was also admitted that Mrs. Newman, believing that Joseph was the owner of the lot in controversy, in good faith accepted the note and mortgage, in consideration of money loaned by ber to him. No other evidence was offered on the trial of the present case. The circuit court adjudged that Mrs. Newman’s mortgage be cancelled and that the title of the plaintiffs below be quieted.
    
      Fred E. Bruml and Oscar J. Horn, for plaintiff in error.
    This decree we c.ontend is erroneous and of no force for the following reasons:
    First. Said decree appears to be entered by consent of defendant’s counsel as it recites, although the language might be construed to be, that the counsel of the defendant consented only that the defendants should be in default of answer or demurrer, and that the consent of counsel did not extend to the further findings and decree of the court.
    Second. That the finding that the plaintiffs were entitled to the specific execution of the contract in their petition described to the amount of two thousand dollars, is of no force, for no specific performance of the contract can be awarded in damages without evidence as to the amount of the damage, which nowhere appears in the decree to have been had.
    Third. That the finding that the plaintiffs would be satisfied with the conveyance to them by a deed in fee simple of sublot No. 56, and the decree based thereon that within sixty days the defendant should convey to the plaintiffs said sublot No. 56, by deed of general warranty; and in default thereof that this decree should operate as, and have the full force and effect in law of such conveyance — is clearly void and of no effect, because no such relief is prayed for in the plaintiff’s petition, which prays for the conveyance of sublot No. 57, which was then encumbered by a mortgage of five hundred dollars, while said sub-lot No. 56 had no encumbrance thereon.
    Fourth. The further finding that this decree is made a lien on all the property described in the petition as defendant interest may appear is- not such a, decree as the court has jurisdiction to render, for if the prior finding is void then this finding as to a lien is also of no force, because a void decree can not be made a lien upon land.
    Fifth. That the counsel of defendant had no power to consent to such a decree, that the same is not a confession of judgment, but if it is anything it is a compromise of the rights of the defendant.
    3 Am. and Eng. Enc. Law (2 ed.), p. 358.
    Upon the point that the decree is invalid it is not responsive to the pleadings. Spoors v. Coen, 44 Ohio St., 497; Enc. Law, (1 ed.) p. 882.
    A decree can not be based on facts not in issue in the pleadings. Carneal v. Banks, 23 U. S. (10 Wheat.), 181; Gregory v. Powers, 3 Litt. (Ky.), 399.
    The finding of facts should follow the pleadings. Lipp v. Harsbach. 12 Neb., 371.
    Plaintiff’s relief is limited by the prayer of the bill. Ellis v. Sissons, 96 Ill., 105.
    A failure to answer admits the facts alleged in the petition only. Meux v. Anthony, 11 Ark., 411; 52 Am. Dec., 274; 47 Ill., 353.
    A void judgment is of no effect and this judgment being void because it decrees the transfer of the title of sublot No. 56 when the petition does not ask for it, may be disregarded. See Secs. 17 and 18, Freeman on Judgments.
    We call the attention of the court to the petition filed by Joseph Desnoyers in cause No. 47950 and to the subsequent decree where the court opened up and modified the decree in cause No. 46212.
    Section 5358, Rev. Stat., provides that “The proceedings to vacate * * * shall be by petition * * * setting forth * * * the grounds to vacate or modify it, and, if the party applying was a defendant, the defense to the action.”
    Section 5359, Rev. Stat. — “The court must first try and decide upon the grounds to vacate or modify a judgment before trying or deciding the validity of the defense.”
    This the court proceeded to do and both sides.appeared, went to trial, argued and submitted their case and the court upon due consideration opened up the judgment in 46212 and modified the judgment.
    The proceedings conclusively show that the court in fact did find that Joseph Desnoyers had a valid defense to the cause of action, although the journal entry fails to include all that the court did decide.
    This motion for a new trial was heard and submitted and overruled.
    As Sec. 5 must have been argued to the court, therefore in denying the motion for a new trial, the court again passed on the question of the validity of Joseph Desnoyer’s defense to the cause of action in the petition in No. 46212, and again by its action found the issues in his favor.
    The court have taken these several steps, complying with all the requirements of the statutes, in No. 47950, gave to Joseph Desnoyers, leave to plead, by motion or otherwise by March 31st in case No. 46212. Watson v. Paine, 25 Ohio St., 340; Evans v. Iles, 7 Ohio St., 233; Henry v. Jeans, 48 Ohio St.,443; section 5314, Rev. Stat., Sec. 5.
    
      We maintain that the action of the court granting the motion to strike from the files was equivalent to a judgment of dismissal without prejudice. Nash on Pleading. (4 ed.), p. 276; Frazier v. Williams, 24 Ohio St., 625; construes Secs. 5358-9-60, Rev. Stat.; Brundage v. Biggs, 25 Ohio St., 652; Braden v. Hoffman, 46 Ohio St., 639.
    In our case, hoAvever, while the journal entry of opening up and modifying the former decree does not show that the court found that there was a valid defense to the cause of the action, yet the motion for a neAv trial, which is a part of the record, shows that the court did so find, and therefore the authority above is not conclusive against us, but if anything, in our favor, for it indicates that if the court had found a valid defense and had modified the judgment, its order giving leave to answer would have been correct.
    
      Ralston v. Wells, 49 Ohio St., 298, decides: The proper proceeding to vacate a judgment of a former term is by petition under Sec. 5358, Rev. Stat., and not by motion under Sec. 5357 (p. 301, Sec. 3). If defendant slioAved ground to vacate, the court should have adjudicated no further than to determine that question, for there still remained to be heard and passed upon the further question whether the right judgment had not, after all, been rendered. The aboA’e case is not applicable to ours on the facts, for in our case the plaintiffs have by their own refusal to plead and by submitting to have their case stricken from the files, prevented this court from making a final finding upon the merits of the case; and the question of the validity of our defense has not, and cannot be any further determined, because the plaintiffs refuse to submit their case to the court for determination and refuse to make up an issue.
    
      W. H. Polhamus, for defendants in error.
    The court of common pleas had jurisdiction both of the subject of the action, and the parties thereto.
    That being so, its decree was binding on parties and privies, until regularly reversed, no matter how irregular or erroneous it may have been; and such errors are not available on collateral attack of the judgment or a title under it.
    
      Bigelow v. Bigelow, 4 Ohio, 138; Buell v. Cross, 4 Ohio, 327; Douglass v. McCoy, 5 Ohio, 522; Foster v. Dugan, 8 Ohio, 87, 107; Adams v. Jeffries, 12 Ohio, 253; Boswell v. Sharp, 15 Ohio, 447; Paine v. Moore-land, 15 Ohio, 435; Douglass v. Massie, 16 Ohio, 271; Cochran v. Loring, 17 Ohio, 409; Newman v. Cincinnati, 18 Ohio, 323; Reynolds v. Stanbury, 20 Ohio, 344; Fowler v. Whiteman, 2 Ohio St., 270; Moore v. Robison, 6 Ohio St., 302; Trimble v. Longworth, 13 Ohio St., 431; Callen v. Ellison, 13 Ohio St., 446; Hammond v. Davenport, 16 Ohio St., 177; Calkins v. Johnston, 20 Ohio St., 539; Spoors v. Coen, 44 Ohio St., 497.
    Decrees in chancery stand on the same footing as judgments at law, in respect to concliisiveness on parties and privies. Babcock v. Camp, 12 Ohio St., 11; Welsh v. Childs, 17 Ohio St., 319.
    Where a court of general jurisdiction is to exercise its powers upon a state of facts to be proved before it, the proof is presumed to have been made, and the existence of the fact cannot be collaterally denied. Pillsbury v. Dugan, 9 Ohio St., 117; Maxsom v. Sawyer, 12 Ohio St., 195.
    
      The decree was absolute as to the defendants in error when the petition to set aside was filed.
    The decree was never reversed. Hettrick v. Wilson, 12 Ohio St., 136.
    The power of the court to set aside or vacate its judgments, subsequent to the judgment term, is governed by settled principles, to which the action of the court must conform. Huntington v. Finch, 3 Ohio St., 445; Braden v. Hoffman, 46 Ohio St., 639.
    Court journal must show what the court really did. 2 Evans, Poth., 336.
    Whether it has been adjudged that there is a valid defense to the action, before setting aside a judgment rendered at a former term of the court, should not be left to mere presumption. Hettrick v. Wilson, 12 Ohio St., 136.
    In order that the validity of the defense may be adjudged, an issue or issues should be made up by proper pleadings.
    If the proceeding to vacate or modify be by motion, the defendant should be required to file his answer to the original petition, with leave to the plaintiff to reply. Was the application in this case by motion? Then defendant should have been required to file his answer. But no answer was filed. If the proceeding be by petition, in which the matters of defense are set forth in issuable form, it would be sufficient, no doubt, to take issue thereon by reply or demurrer. When the issue is thus made up, it should be tried as in other cases. Watson v. Paine, 25 Ohio St., 340, Frazier v. Williams, 24 Ohio St., 625.
   Shauck, J.

The view urged in support of the judgment of the circuit court is that the decree of the court of common pleas in favor of the defendants in error in their suit for a specific performance remains in force notwithstanding the .subsequent order of the same court for the vacation of that decree. This is said to be so because in its subsequent order for the vacation of that decree the court of common pleas did not expressly adjudge that Joseph Desnoyers had a valid defense to the suit in which that decree was entered. His petition filed for that purpose alleges fraud in the recovery of the judgment whose vacation he sought, as well as a valid defense to the suit in which it was recovered. It appears clear, and it is admitted, that his petition is in accordance with the requirements of section 5358 of the Revised Statutes. The jurisdiction of the court to vacate its judgment rendered at a former term was therefore properly invoked, and the parties in whose favor that judgment had been rendered were before the court upon the petition to vacate. The precise point made by counsel for defendants in error is that the court failed to exercise its jurisdiction in that behalf because its order for the vacation of the judgment did not comply with section 5360 of the Revised Statutes whose material provision is that “a judgment shall not be vacated on motion or petition until it is adjudged that there is a valid defense to the action in which the judgment was rendered.” In support of the proposition that the adjudication with respect to the existence of such defense is indispensable to the validity of the order of vacation Hettrick v. Wilson, 12 Ohio St., 136, 138, and Braden v. Hoffman, 46 Ohio St., 639, are cited. Other decisions of this court of like purport with those might have been cited. They were proceedings in error to reverse orders vacating judgments rendered at former terms of the courts in which they were made, The cases establish the doctrine that an' order to vacate a judgment rendered at a former term without the required adjudication with respect to the existence of a valid defense is erroneous, and that such adjudication must affirmatively appear in the record. But none of the cases holds that such order without the required adjudication is void and subject to collateral attack. In the present case the parties joined issue upon the petition to vacate the judgment in their favor and offered evidence in support of their answer. When the order of vacation was entered they acquiesced by not instituting a proceeding for its reversal. They afterward appeared in the original case to contest the motion which was directed against their petition. That motion having been sustained, and another being made to dismiss the petition because of their failure to comply with the order of the court for the amendment of their petition, they contested that; and although excepting to the order sustaining the motion to dismiss, they acquiesced therein. All the issues involved were triable by the court without the intervention of a jury. At every step the court Avas engaged in the exercise of jurisdiction expressly conferred upon it by statute, and all parties affected by its orders Avere before it. NotAvithstanding the error in the exercise of its jurisdiction, when the court finally dismissed the original petition the original decree was as effectually annulled and the case disposed of as though it had been upon isues of fact joined. No reason appears for holding that the case should be regarded as an exception to the general rule that all judgments and final orders made by courts in the exercise of jurisdiction over the subject matter and jurisdiction of all persons whom they affect are valid until they are reversed. The common understanding that orders of vacation, defective as is this, are within that general rule, is indicated by the numerous proceedings instituted for their reversal.

Judgment reversed and judgment for plaintiff in error.

Mins hall, C. J., Williams, Burket and Spear, JJ., concur.

Davis, J., absent.  