All City Home Improvement Co. v. Murray

Radcliee, J. This is an attempted appeal from the granting of a motion to vacate a default judgment. The judgment by default in favor of the appellant and against the appellees was granted on June 12, 1959. The motion to vacate the default judgment was filed by the defendants-appellees on June 15, 1959. We do not feel that the granting of a motion to vacate a default judgment and the entering thereof upon the journal of the Common Pleas Court is a final order from which an appeal may be taken as defined in Section 2505.02, Revised Code. It is the personal opinion of the author here that the above statement pertains regardless of any question of abuse of discretion on the part of the trial judge. However, out of my deep respect for the views of some of the other members of the [514] Court of Appeals, I will treat tbe question here involved as if tbe appeal were being taken from tbe granting of a motion for a new trial. As we all know sucb a judgment is not a final order from wbicb an appeal can be taken unless tbe trial court granting tbe motion can be shown to have abused bis discretion. It will be necessary to list some of tbe chronology of this case in tbe trial court. 5-7-59 Petition filed by appellant. 5-20-59 Appellees filed a demurrer and motion to strike. .6-2-59 Demurrer and motion to strike sustained (not jour-nalized until 1-11-60). 6-3-59 Motion to reconsider above filed by appellant. 6-8-59 Motion to reconsider overruled. (Still not jour-nalized). 6-12-59 Judgment rendered by virtue of default of appel-lees to answer. Judgment in favor of tbe appellant. 6-15-59 Motion to vacate judgment filed by appellees. 9-14-59 New term of court. 11-6-59 Hearing on motion to vacate. Motion to vacate dismissed with leave to file a new motion. 11-30-59 Motion to reconsider ruling of 11-6-59 filed by appellees. 12-14-59 Opinion by trial judge granting reconsideration and vacating default judgment rendered on 6-12-59. 12-28-59 Entry on above ruling journalized. It is necessary for us to include a portion of tbe proceedings bad at tbe bearing on November 6, 1959, in order to understand what transpired at that time. “Mr. Brown: If tbe Court will allow me to amend tbe motion — I specifically ask tbe Court that I be entitled to amend my motion. “Mr. Palcich: I would object to an amendment stated as sucb. I have no objection if be wants to file a new one or bear it some other time or wants to file a new motion and argue it right now, but I do object to amending something. “Tbe Court: If be files a motion, isn’t be out of term? “Mr. Palcich: No. “Tbe Court: Sustain your motion and give him leave to file a new motion to specifically state tbe irregularities. “Mr. Brown: To amend within term? [515] “The Court: Yes, to file an amended motion stating the grounds for the irregularity. < C * * * “Mr. Brown: To amend motion to vacate and it is sustained. “The Court: No, I haven’t sustained it, I sustained Mr. Palcich’s motion and granted you leave to file a motion to set forth your grounds. What I did, I sustained Mr. Palcich’s. motion to strike your motion, but granted you the right to file a motion to set forth the grounds. Mr. Palcich says that a motion to vacate a judgment, based upon irregularities may be filed at any time and not (being) within term does not invalidate it, I assume (he) is right. Mr. Palcich ought to know. Irregularities, Section 2325.04, Revised Code.” It does not require a very careful reading of the above extract of the Bill of Exceptions to conclude that the trial judge did not in any way abuse his discretion. The motion to vacate the default judgment was filed within term and even though ultimately disposed of in a succeeding term there was no time at which the appellees had lost their right to have an opportunity to have a day in court. We will not go into any analysis of the myriad cases that construe Section 2505.02, Revised Code, but will cite the landmark cases decided before and after the 1947 amendment beginning with Higinbotham v. Atwater, 12 Ohio App., 83; The Continental Trust & Savings Bank Co., v. The Home Fuel & Supply Co., 99 Ohio St., 453; Chandler & Taylor Co., v. Southern Pacific Co., 104 Ohio St., 188; Hoffman et al, v, Knollman et al., 135 Ohio St., 170; Green v. Acacia Mutual Life Ins. Co., 156 Ohio St., 1; Johnson v. O’Hara et al., 156 Ohio St., 117; Mele v. Mason, 156 Ohio St., 118; Lawrence v. Moore, 156 Ohio St., 375; DeTunno, a minor, v. Shull, 166 Ohio St., 365; Casey v. Ohio State Nurses Association, 65 Ohio Law Abs., 411; Gardell v. The Cincinnati Street Ry. Co., 84 Ohio App., 547; and Hiboluk v. Pozniakow, 107 Ohio App., 102. Upon the authority of the above cited cases we hold that, as there is no abuse of discretion shown on the part of the trial judge, the other assignments of error not being well taken, the vacating of the judgment by default does not constitute a final [516] order from which an appeal may be taken and we therefore dismiss the appeal upon our own motion. Appeal dismissed. GllleN, P. J., and Collier, J., concur.