Star Building & Loan Co. v. Smith Co.
This text of 12 Ohio Law. Abs. 162 (Star Building & Loan Co. v. Smith Co.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
It is admitted that the judgment by default was entered without evidence on the theory that the failure to traverse the petition amounted to a confession of the damages alleged and in the amount claimed. This procedure is not warranted by the statute. If the petition made a cause of action it was in tort. It was not such an action as is embraced in §11383 GC. A default might have been entered as provided in §11592 GC and damages assessed as provided in §11593 GC, but admittedly this was not done. There resulted consequently an irregularity such as is provided for in the third paragraph of §11631 GC. A motion for the purpose of opening up the judgment was sufficient, and this was, in legal effect a motion though styled a petition. The trial court was right in opening up the judgment. Lemieux v Kountz, 107 Oh St 84.
Judgment affirmed.
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12 Ohio Law. Abs. 162, Counsel Stack Legal Research, https://law.counselstack.com/opinion/star-building-loan-co-v-smith-co-ohioctapp-1931.