
    Follett v. Alexander, et al.
    “ Irregularity in obtaining judgment,” what is — Section 5357, Revised Statutes, construed — Before vacating judgment Court must adjudge a valid defense exists.
    
    1. The rendition of judgment for plaintiff, as upon default, where a demurrer has been duly filed to the petition and remains undisposed of, is an “ irregularity in obtaining a judgment,” for which the court may, upon motion and a proper showing, vacate the judgment.
    2. A motion setting forth the above facts is not a motion to vacate because the judgment was rendered “ before the action regularly stood for trial, ” within the meaning of section 5357, Revised Statutes, and hence is not required to be made within “ the first three days of the succeeding term.”
    3. Upon the hearing of such motion, it is error for the court to enter a judgment of vacation before it has adjudged that there is a valid defense to the action.
    (Decided March 22, 1898.)
    ERROR to the Circuit Court of Franklin county.
    The plaintiff sued the defendants in the court of common pleas, to recover under that section of the gambling act which gives to the wife a cause of action for money lost by her husband at gaming. Her petition was filed December 23, 1893. January 20, 1894, a demurrer was filed by defendants, on the ground that it appeared on tbe face of the petition that the alleged causes of action were barred by the statute of limitations. A memorandum in support of the demurrer was filed with it.
    At the September term, 1894, to wit: October 10, 1894, the cause was submitted to the court, a jury being waived, and the court, finding that the defendants were each' in default for answer or demurrer, upon consideration, found for the plaintiff and rendered judgment in her favor and against defendants, for $879.05, and costs.
    At the April term, 1895, to-wit: June 29, 1895, defendants filed a motion to set aside the default judgment on the ground that the same was taken without notice to the defendants, or their counsel, irregularly, improperly, and in violation of the rules of court. The motion averred that no entry was submitted to counsel for defendants; a demurrer duly filed with memorandum in support, remained undisposed of, the same never having been pressed for hearing; the cause was never ready for hearing upon the facts ; never noted for trial; never placed upon the bar lists from which assignments are made up, nor ever put upon any of the printed assignments.
    On July 11, 1895, the motion was heard, and the court having found that plaintiff’s attorney had received due notice of the filing of the motion, and that the motion was well taken, sustained it, and adjudged that the “ judgment be and the same is hereby vacated, set aside and held for naught.” This judgment of vacation was affirmed by the circuit court and it is to procure a reversal of the judgment of affirmance, and of the' judgment of
    
      vacation in the common pleas, and the reinstatement of the original judgment, that this proceeding in error is brought.
    
      Charles Follett and T. F. Powell, for plaintiff in error,
    cited the following statutes and cases: Sections 5123, 5124, 5125, 5357, 5358, 5360, Revised Statutes; 36 Ohio St., 639; 49 Ohio St., 298; Hittick v. Wilson, 12 Ohio St., 136; Huntington v. Finch & Co., 3 Ohio St., 445; Frazier v. Williams et al., 24 Ohio St., 625; Watson et al. v.' Paine, 25 Ohio St., 340 ; Braden v. Braden, 46 Ohio St., 639.
    
      T. J. Keating, for defendants in error,
    cited the following statutes and cases : Gilliland v. Sellers, Admr., 2 Ohio St., 223; Kent v. Bierce, 6 Ohio St., 336; Wood Practice Evidence, 624; 12 Ind., 448; 9 Ohio St., 511; Cooper v. Rowley, 29 Ohio St., 547; Carens v. Knight, 17 Ohio St., 69; Bank v. Greene, 40 Ohio St., 431; Elliott on Appellate Procedure, sections 470, 658, 674, 672, 679.
   By the Court :

It is proper to say that no charge of bad faith is made against counsel who obtained the judgment. Other cases of like character were pending between the same parties, and it is probable that the' demurrer and memorandum had been placed with the files in one of the other cases, and were, for that reason, overlooked. Nor was there failure to act promptly on the part of counsel for defendants. They filed the motion immediately upon learning that the default judgment had been taken.

The judgment of vacation is attacked upon two grounds: 1. That the motion came too late; if available at any time it should have been filed not later than the third day of the succeeding (January) term. 2. That the judgment of vacation could not be lawfully entered until the court had first found and adjudged that a valid defense to the action had been shown.

Other questions are argued, but the record eliminates them from consideration.

The case turns, therefore, upon whether or not the motion was filed in time, and whether the common pleas had -power to vacate before finding that a valid defense had been shown.

Section 5357, Revised Statutes, provides : “The proceedings to correct mistakes or omissions of the clerk, or irregularity in obtaining a judgment or order, shall be by motion, upon reasonable notice to the adverse party or his attorney in the action; but the motion to vacate a judgment because of its rendition before the action regularly stood for trial, can be made only in the first three days of the succeeding term.”

It is manifest that the ground of the motion was irregularity in obtaining the default judgment, for the regular course of practice would require that the demurrer be disposed of before judgment on the petition, and this without reference to any local rules of practice, as to pressing the demurrer for hearing, noting the case for trial, or placing it upon a bar list, or what not. And the irregularity would be just as patent whether the court or counsel knew of the filing of the demurrer or not. It seems equally manifest that the ground of the motion, that is, the real gist of it, was not because of the rendition of judgment before the action regularly stood for trial, for the irregularity did not consist in taking up the case for disposition of the issues of law raised by the demurrer out of its order with respect to other cases on the docket or at too early a date. It was quite within the discretion of the court to dispose of the demurrer at any convenient time after it had been filed, and, if overruled, and no further pleading’ was desired, to award judgment. The real objection, therefore, notwithstanding the recitals of fact in the motion, is not that the court undertook to act upon the case too soon, but that the action which it did take was irregular in substance as well as in form. It follows that the motion was not required to be filed within the first three days of the succeeding term, and was within proper time.

But if the action of the common pleas was clearly irregular in the first instance it was not less clearly erroneous in the second. The rule is two well established to need argument or illustration that, after deciding upon the grounds to vacate, the judgment shall not be vacated ‘ ‘ Until it is adjudged that there is a valid defense to the action. ’ ’ Section 5S60, Revised Statutes ; Frazier v. Williams, 24 Ohio St., 625; Watson v. Paine, 25 Ohio St., 340; Bank v. Slemmons, 34 Ohio St., 143. It is suggested that the presence of the demurrer was a sufficient showing of defense. We think not. At all events the court did not attempt even to act upon that.

The judgment of the circuit court affirming that of the common pleas, and the judgment of that court vacating the judgment of October 10, 1894, will be reversed, and the cause remanded to the latter court for further proceedings according to law on the motion.

Reversed.  