Shoup v. Holman

Per Curiam. On August 11, 1983, the appellee, John E. Shoup, filed a personal injury action alleging assault against the appellant, Ricky Holman. The complaint was served by certified mail. On November 7, 1983, Shoup filed a motion for default judgment based upon Holman’s failure to file a responsive pleading. The motion for default judgment did not contain a proof of service. The trial court dismissed the cause without prejudice on March 1, 1984, after being informed that an *128 agreement had been reached between the parties. On May 22, 1984, Shoup filed a motion to vacate the dismissal as the agreement between the parties had fallen through. This motion contained a proof of service indicating that the motion had been sent to an attorney for Holman. The record reflects that the subject attorney never made an appearance on Holman’s behalf. On November 6, 1984, the trial court granted Shoup’s motion to vacate and entered a default judgment in his favor. In early 1988, garnishment proceedings were commenced against Holman, and as a result funds were withdrawn from Holman’s pay. On May 7, 1990, Holman filed a motion to vacate judgment, contending that he did not have notice of the motions for default judgment and to vacate judgment. The trial court denied Holman’s motion, holding that the delay in filing the motion was unreasonable. Holman appeals, asserting one assignment of error. Assignment of Error “The trial court erred in overruling defendant-appellant’s motion to vacate judgment after the case had been improperly reinstated and judgment rendered against the defendant-appellant.” A review of the record discloses that the appellant’s motion to vacate asserted that the trial court was without jurisdiction to vacate the dismissal and enter default judgment. The motion made no mention of Civ.R. 60(B), nor did it provide authority for the proposition that the court was without jurisdiction to grant the appellee’s motion to vacate and enter default judgment. As the motion addressed the trial court’s jurisdiction rather than request relief under Civ.R. 60(B), the trial court erred in relying upon the timeliness requirement of Civ.R. 60(B). This fact, however, is not dispositive of the issues in the case at bar, as a trial court has the inherent power to vacate a dismissal and reinstate a cause to the trial court’s docket. See Horman v. Veverka (1987), 30 Ohio St.3d 41, 42-43, 30 OBR 83, 84, 506 N.E.2d 218, 219-220. As the trial court had the inherent power to vacate the dismissal in 1984, there is no basis for concluding that the default judgment was rendered without jurisdiction, and it was therefore not error for the trial court to deny the appellant’s jurisdictional motion. *129 Accordingly, the assignment of error is without merit and the judgment of the trial court is affirmed. Judgment affirmed. Baird, P.J., Cook and Cacioppo, JJ., concur.