Terwoord v. Harrison

226 N.E.2d 111, 10 Ohio St. 2d 170, 39 Ohio Op. 2d 167, 1967 Ohio LEXIS 385

• Court: Ohio Supreme Court
• Decided: April 26, 1967
• Docket: No. 40488
• Status: Published

Opinion

Per Curiam.

The order which was before the Court of Appeals for review was the order overruling the motion to vacate the default judgment. Since the motion was made during term, the trial court had the inherent right, founded upon the common law, to sustain or overrule the motion to vacate that judgment. Moherman v. Nickels, 140 Ohio St. 450, 143 A.L.R. 1174.

The Court of Appeals, in ruling on the propriety or impropriety of that order, had only to rule upon the limited question of whether or not the trial judge abused his discretion in refusing to vacate the order. Such abuse of discretion must appear in the record. Wyant v. Russell, 109 Ohio St. 167; Wagner v. Long, 133 Ohio St. 41, 49.

In this case, the only thing which appears in the record on that question is the representation of defendant’s counsel that it was his omission that brought about the default.

The exercise of discretion in such circumstances should not be so limited. Thus, the mere statement by counsel that a default judgment resulted from his omission, standing alone as the sole ground for a motion to vacate a judgment rendered by default, is not sufficient to justify the reversal of the trial court’s order denying that motion on grounds of abuse of discretion.

The judgment of the Court of Appeals is reversed.

Judgment reversed.

Taft, C. J., Zimmerman, Matthias, O’Neill, Herbert, Schneider and Brown, JJ., concur.