French Wax Figure Co. v. Jupp Baxter Co.

12 Ohio Cir. Dec. 76

• Court: Ohio Circuit Courts
• Decided: March 11, 1901
• Status: Published

Opinion

Marvin, J.

This is a proceeding in error to the court of common pleas of this county.

Suit was brought in that court by the plaintiff here against the defendant here, and judgment taken against the defendant upon default. This judgment was Taken at the September term, 1900, and, at the same term, upon motion of the defendant that default was set aside and the case reinstated upon the docket of the court.

It is to reverse this order, setting aside the default, that this proceeding is prosecuted.

On the part of the plaintiff in érror it is conceded that the granting of the motion was within the discretion of the court and that its order in the premises can only be reversed by a finding here that such discretion was clearly abused. .

The grounds upon which the defendant asks to have the default set aside are set forth in a motion, in which it is averred that the defendant has a good defense to the action as set forth in the petition; that George H. Burrows, attorney for the defendant, from the time the action was brought in the court of common pleas up to the time when said default was taken, was very busy in attending to his professional business and that by mistake of a clerk in his office the present case was omitted from the list of cases to which his attention should have been called, and that the attorney did not know that he was in default of answer until after the judgment was taken.

This motion is supported by the affidavit of George H. Burrows, defendant’s attorney.

The bill of exceptions discloses that the defense relied upon and which is averred in the motion to be a good defense to the cause of action set forth in the petition, is, that the money sued for in the original action, although owing by the defendant to the plaintiff,, was not due at the time the suit was brought.

A rule of the .court of common pleas is set forth in the bill, which reads:

“ Defaults entered upon the journal shall not be set aside except upon notice to the opposite party, and showing by the applicant of a good defense and a good reason why he is in default; in which case the default may be set aside upon such terms as the court may deem just; and the pleading for the setting aside of which such default exists, shall be filed forthwith unless otherwise ordered by the court.”

It is said that the setting aside of the default here was in violation of this rule, because the defense shown was not a good defense to the action; and that the setting aside of the default was, therefore,' an abuse on the part of the court of the discretion vested in it by law in such case.

Numerous authorities are cited on the part of the plaintiff in error in support of the proposition that there may be such an abuse of discretion on the part of the court in setting aside its orders made during the term as would constitute reversible error.

That the excuse given for not filing an answer in time by counsel for defendant is a very weak one, cannot be denied ; and the court would have been justified in refusing to set aside the judgment.'

Counsel for the defendant undertook to comply with the rule of the court already quoted, in setting out what the defense was. Whether, if this had not been done, we should be justified in reversing the case for a non-compliance with this rule, it is unnecessary to say; but as the defendant did set out what his defense in the matter was, we are called upon to look at that defense.

The suit was upon a contract. That contract consists of correspondence which passed between the parties, and shows that certain goods owned by the plaintiffs were consigned to the defendants. A part of such goods were paid for by the defendants; as to the balance a claim was made by the defendants, that they were not, in the first instance, purchased by them but only received to be sold by the defendants for the plaintiffs. In the letter from the defendants to the plaintiffs, in which this claim is made, it is stated that if the plaintiffs choose to do so, they may leave the goods with the defendants and they will accept and pay for them after the first of July. * * * To this the plaintiffs answered that they would agree to the proposition made by the defendants that the goods should be kept and paid for after the first of July.

The original bill of the goods furnished by the plaintiffs contains the words “ Time, 60 days.” This suit was brought in less than sixty days after the first of July, and the claim of the defendant was that it was prematurely brought; that a fair construction of the contract made by the correspondence is that payment should be made for these goods sixty days after the first of July.

We do not think this a proper construction of the contract, but that the plaintiffs were entitled to payment immediately after the first of July; that their suit was not, therefore, prematurely brought, and that what is claimed by the defendants as a defense could not have availed. That being the case, the default should not have been set aside, and the mistake of the court in setting it aside was such that we feel bound to reverse the order of the court in that regard, which is done accordingly.