McMillen v. Willard Garage, Inc.

*113 Guernsey, P. J. This is an appeal from an order of the Common Pleas Court of Hancock County overruling a motion to vacate a judgment on a cognovit note pursuant to warrant of attorney but without actual notice to the defendant, Willard Garage, Inc., purported to be the maker of the note. The motion to vacate judgment, which was filed within the same term of court as when the judgment was rendered, asserted as reasons for the vacation that the judgment “was for more than was due plaintiff [Arlo McMillen], * * * that defendant has a valid defense to said obligation and that defendant offered plaintiff settlement in full for said note.” The motion was accompanied by defendant’s affidavit that “there is nothing owed whatsoever by” defendant on the note. Subsequently, defendant filed with the clerk of courts an answer in the form of a general denial and a “counterclaim” asserting three causes of action unrelated to the making of the note. No bill of exceptions has been filed. Although there is substantial authority that in these circumstances the appellate court may consider the allegations set forth in the motion and in the affidavit notwithstanding there is no bill of exceptions (Lutkenhouse v. Vella, 42 Ohio Law Abs. 520), without a bill of exceptions we do not have before us and may not consider any evidence adduced at the hearing on the motion. The issue then is whether the allegations of the motion and its supporting affidavit were sufficient, in and of themselves, to require the Common Pleas Court to vacate the cognovit judgment which it previously had rendered. A motion to vacate judgment filed after term may, dependent upon the grounds which it sets forth, invoke either a statutory remedy under Section 2325.01 et seq., Revised Code, or a common-law remedy. Van DeRyt v. Van DeRyt, 6 Ohio St. 2d 31. On the other hand, there being no statutory provision for a motion to vacate judgment filed within term, the proceedings on such motion are strictly of common-law origin and character. In some cases such motion has been compared to, or considered as, a motion for a new *114 trial. Continental Trust & Savings Bank Co. v. Home Fuel & Supply Co., 99 Ohio St. 453, and Miller v. Miller, 56 Ohio Law Abs. 280, 283. Though authority exists that an order overruling a motion to vacate judgment filed during term is not an appealable order (Skeel’s Ohio Appellate Law, Section 179), since an order overruling a motion for new trial is considered appealable and since cognovit judgments may be rendered without notice first being given to the actual obligor, it would seem to be better practice to consider an order overruling a motion to vacate a cognovit judgment as being appealable. Nevertheless, such orders are largely within the discretion of the trial court, coming within its modification prerogatives arising from its inherent control over its judgments during term, and may not be reversed except for abuse of that discretion. First National Bank of Dunkirk v. Smith, 102 Ohio St. 120; Edge v. Stucky, 9 Ohio Law Abs. 624; and Miller v. Miller, 56 Ohio Law Abs. 280. In the Smith case the Supreme Court stated that it “is a wholesome rule in furtherance of good practice, especially in reference to judgments taken on cognovit instruments and by confession” for a trial court to adopt the statutory procedure applicable to the vacation of judgments after term to motions to vacate judgments filed during term, but that such procedure “does not limit a court of general jurisdiction in the exercise of its control over its judgments during the term.” This rule was reiterated in Tims v. Holland Furnace Co., 152 Ohio St. 469, 473, cited with approval in the case of Farley v. Pickett, 177 Ohio St. 133. In the latter case the Supreme Court held: “A court of record or of general jurisdiction which has rendered a judgment is empowered in the exercise of a sound discretion to open, vacate or modify it during the term at which it was rendered, and Chapter 2325 of the Revised Code, entitled ‘Relief After Judgment’ and pertaining to the vacation and modification of judgments after term, is without application.” Notwithstanding that the provisions of Chapter 2325, Revised Code, do not limit a trial court in the exercise of *115 its jurisdiction to vacate a judgment pursuant to motion filed during term, the measure of whether it abused its discretion in overruling the motion to vacate should be no greater or more severe than is the measure of a court’s duty with regard to a motion or petition to vacate judgment filed after term. In Livingstone v. Rebman, 169 Ohio St. 109, the Supreme Court sets forth at length the duties of a trial court in determining whether a judgment should be vacated, or suspended, pursuant to a petition to vacate filed after term. Although the court split on some of its conclusions there appears to be no disagreement as to the conclusions that it is the duty of the trial court to first try and decide upon the ground for vacation, that a hearing upon evidence is contemplated, that mere allegations of grounds for vacation and of matters of defense are not sufficient, and that, in the case of the assertion that judgment upon warrant of attorney was taken for more than was due the plaintiff, something more than a mere prima facie showing of a defense is necessary. A similar, but slightly more liberal viewpoint insofar as proof is concerned, was adopted by the Court of Appeals for Franklin County in Canal Winchester Bank v. Exline, 61 Ohio App. 253, involving a motion to vacate a cognovit judgment filed during term, where Judge Hornbeck stated at page 259, in his opinion: “Obviously the prerequisites to an adjudication of a valid defense require more than a general denial of the averments of the petition which would be sufficient to state a defense before judgment. It is essential that the judge, who is called upon to suspend the judgment, must have enough factual information before him -to require determination that the defendant has a valid defense. If the party moving to suspend the judgment can within the rules of pleading set out in his answer sufficient facts to apprise the court that he has a defense, this should be done and the adjudication can be made upon the averments of the answer. If, to set forth enough facts to disclose his defense, he would offend the rules of pleading by setting them *116 out in his answer, then they should be brought to the attention of the court by evidence orally or by affidavit. Unless the defense is a sham, the test which the court should apply to the facts is whether, if true, they state a complete defense in part or in whole to the cause of action set forth in the petition.” In the instant case we find that the motion and accompanying affidavit set forth legal conclusions only. The filed (or tendered) answer, if it may be considered at all and insofar as it purports to set forth a defense to the action on the cognovit note, sets forth a defense only by way of a general denial. Applying the standards set forth in the Redman case, supra, or the slightly more liberal standards set forth in the Exline ease, supra, we determine that the record before this court demonstrates only that the trial court acted properly in overruling the motion to vacate judgment. There are no facts in the record before us tending to prove the existence of a valid defense and thereby to show that the trial court abused its discretion. In the absence of a bill of exceptions setting forth such facts, the presumption of regularity of the trial court’s order obtains. Defendant-appellant’s assignment of error is not well taken, and the judgment of the Common Pleas Court is affirmed. Judgment affirmed. Cole and Brown, JJ., concur.