
    Balind v. Lanigan, d. b. a. East Side Coal Co.
    
      Judgments — Motion to vacate default — Absence of defendant’s counsel from city on trial date insufficient ground — Rehearing ineffectual, after court lost jurisdiction by overruling motion to vacate — Setting aside default after term, without hearing, abuse of discretion, when — Sections 11686 and 11637, General Code.
    
    1. Absence of defendant’s lawyer because he had some business out of town on day of trial held insufficient reason for motion to vacate default.
    2. Where motion to 'vacate default was overruled on May 19, 1925, motion for rehearing, filed on June 30, long after court had lost jurisdiction, was ineffectual.
    3. Where default was rendered April 10, 1924, and motion to vacate judgment was filed on April 25, 1925, and overruled on May 19, 1925, order of trial court in October, 1925, under Sections 11636 and 11637, General Code, on rehearing of motion vacating judgment because defendant’s attorney was out of town on other business at time of trial, held abuse of discretion.
    (Decided December 6, 1926.)
    Error: Court of Appeals for Cuyahoga county.
    
      Messrs. Rocker & Schwarts, for plaintiff in error.
    
      Mr. James T. Cassidy, for defendant in error.
   Vickery, J.

This action comes into this court on a petition in error to the common pleas court of Cuyahoga county.

In the court below the plaintiff in error, David Balind, was plaintiff and brought his action against the defendant in error, who was defendant, to recover a judgment for personal injuries growing out of an automobile accident. Service was duly had -upon the defendant, who in dne course and within the rule filed an answer, which purported to set up a defense. Subsequently in the regular order of the trial of cases this suit came on the assignment list and was ultimately sent into a room. The plaintiff with his witnesses was present, ready to proceed to impanel the jury and try the case. Neither the defendant nor his counsel put in an appearance. The court having waited one hour for the defendant or his counsel to put in an appearance, and they not doing so, the plaintiff then waived his right to a trial by jury, and the court heard the evidence and rendered a judgment for the plaintiff in the sum of $5,000.

This was on the 10th of April, 1924. On the 25th of April, during the same term, the defendant, through his counsel, filed a motion to vacate the judgment, a judgment having been entered prior thereto. The reason set up in the motion does not, in our judgment, amount to such a casualty as would warrant the court in setting aside the default judgment, but, however that may be, nothing further was done with this motion than to refer it to the trial judge, as is shown by the docket entries and the transcript. For some reason this motion was not called up by the party, nor acted upon, until the 19th day of May, 1925, about 13 months after the motion to vacate was filed. On the 19th of May, 1925, the court overruled this motion. Nothing further was done until the 30th day of June, 1925, 41 days after the overruling of the motion to vacate, and then a motion for a rehearing was filed. Nothing was done then until the September term of court, when, on the 20th day of October, during tbe September term, 1925, tbe court granted a motion for a rehearing; and at tbe same time tbe entry of May 19, 1925, was vacated and tbe motion to vacate tbe default judgment, filed on April 25, 1924, was granted. This was done, as tbe record shows, without any bearing of evidence to show whether there was a proper defense or not. Exception was taken and error prosecuted to tbe ruling of tbe court, and that is bow tbe case gets into this court.

Tbe record is silent as to what, if any, defense there was other than is contained in tbe answer, which, it must be remembered, was on file at tbe time the court beard this case and found for the plaintiff. In our judgment there was no sufficient reason advanced in tbe supporting affidavit for tbe (motion to vacate tbe judgment to justify tbe court in granting this motion, as what was set forth was not a thing such as to induce courts to set aside a solemn judgment obtained by a party in tbe regular way, without any deceit or overreaching.

It seems that tbe lawyer went out of town, and that be bad asked a subordinate in bis office to see that bis name was substituted for tbe name of tbe lawyer that was to have defended tbe suit. He admits in tbe affidavit that at least a slip bad been put in once at bis request for a continuance of this case and that there bad been a telephone communication with him and tbe lawyer on tbe other side. Tbe sole reason was that be bad some business out of town that day, and so went out of town and was not in court when bis case was called.

We recognize tbe right of tbe court to have control of its docket during the term, and we have gone as far as any court in sustaining that doctrine. If the motion on April 25th was filed, and was based upon a sufficient reason, which would give the court a right to act under the motion, and that motion was filed during the term, even if it was not acted upon until several terms thereafter, and ■at the hearing a proper defense was offered and the court had decided that there was a defense, then, we think, everything would be regular, and the court would have jurisdiction over the matter to render such judgment as he did render finally in this lawsuit.

But a recitation of the dates again is important. April 10, 1924, the judgment was entered. April 25 the motion to vacate was filed. On May 19, 1925, that motion was overruled. Now for all intents and purposes that ended the court’s jurisdiction over this matter, assuming it had jurisdiction up to that time.

Now there was nothing filed, as shown by this transcript, until June 30, when a motion for a rehearing of the motion to vacate was filed. We know of no such procedure as this. There was a period of time, 41 days, where there was nothing pending in this court, and we think that a motion for a rehearing filed long after the court had lost jurisdiction was ineffectual and of no moment.

Eliminating this motion for a rehearing, filed June 30, 1925, the next step is in October, when the order of the court overruling the motion of May 19, 1925, was vacated, and then the court proceeded to vacate the judgment upon the motion that was filed on the 25th day of April, 1924. This, as the record shows, without evidence, without a sufficient reason why a judgment was taken in the manner that it was, that is, without a sufficient reason as to why the defendant was not present, we think is clearly beyond the power of the court, and it is an abuse of discretion to say the least. Now, remember that without the motion for a rehearing filed on the 30th of June, 1925, there was nothing pending, and the action of the court on October 20, 1925, related to transactions in some prior term, and they could not be reached by a motion, and the court could not, of his own motion, take such step because at least more than one term had elapsed between the entering of the judgment and the final action of the court.

We think a reading of the statutes (Sections 11636 and 11637 of the General Code) marks out the power and method of the court in granting a motion such as the one in the instant case.

There is a case exactly in point, City of Cincinnati v. Archiable, 4 Ohio App., 218, 21 C. C. (N. S.), 582, 27 C. D., 650, where the Court of Appeals of Hamilton county learnedly discusses this question and comes to the same conclusion to which we have come, to-wit, that it was without the power of the court to make this order vacating the judgment, and that to do so was an abuse of discretion, for which the judgment should be reversed.

The judgment of the court is reversed and the cause is remanded to the common pleas court for further proceedings according to law.

Judgment reversed and cause remanded.

Levine, P. J., and Sullivan, J., concur.  