Wolf v. United Radio Cabs, Inc.

270 N.E.2d 675, 26 Ohio App. 2d 248, 55 Ohio Op. 2d 398, 1970 Ohio App. LEXIS 395

• Court: Ohio Court of Appeals
• Decided: March 30, 1970
• Docket: 11060
• Status: Published

Opinions

Hess, J.

This is an appeal from a judgment entered by the Municipal Court of Hamilton County granting defendant’s motion to vacate a default judgment. The parties will be referred to as they appeared in the trial1 court.

On March 3, 1969, plaintiffs filed a petition in the Municipal Court of Hamilton County, and service was had on the defendant. Various motions were filed by the defendant which were heard by the court and on August 13, 1969, an amended petition was filed by leave of court. No answer was filed by the defendant to the amended petition and on August 29, 1969, a default judgment was granted to the plaintiffs in the amount of the prayer of the amended petition.

On September 17, 1969, the defendant filed a motion to vacate the default judgment which read as follows: ‘ ‘ Comes now the defendant and moves the court to vacate the default judgment heretofore entered August 29, 1969.” This motion was set for hearing on October 2, 1969 and continued to October 15,1969, at which time the trial court signed and journalized an entry which stated: “Motion to vacate default judgment heard, defendant tendered answer, court grants motion to vacate default judgment and sets same aside; answer filed by leave, pltfs except.”

There is nothing in the record to indicate the trial court heard any evidence to support a conclusion the defendant had a valid defense to the allegations contained in the amended petition before permitting the answer to be filed by leave. The entry vacating the default judgment does not say there was good cause shown for the vacation of the judgment.

In their assignment of error, plaintiffs contend that “the trial court erred in vacating the default judgment when there was no evidence before the court upon which it could determine the defendant had a valid defense.”

The question presented in this case is whether the Municipal Court of Hamilton County, being a court of record with limited jurisdiction, may sustain a motion to vacate a default judgment within term when the motion does not present any grounds for a valid defense and the court did not hear any evidence tending to show there was a valid defense.

R. C. 2325.07 provides in part:

“A judgment shall not be vacated on motion or petition until it is adjudged that there is a valid defense to the action in which the judgment was rendered; or if the plaintiff seeks its vacation, that there is a valid cause of action.”

In construing R. C. 2325.07, we find, in 3 Ohio Jurisprudence 2d 764, Appellate Review, Section 791, the following stated: “The control of a reviewing court over the discretion of a lower court in vacating or modifying its judgments or orders during term is limited to cases where an abuse of discretion is clearly shown.” This rule is supported by cases too numerous to mention.

In the instant case, this court is obliged to determine whether there was an abuse of discretion by the trial court in granting the motion to vacate the default judgment.

The record discloses that the trial court did not ap proach the vacation of the default judgment on its own motion; the motion to vacate the default judgment was presented to the court by the defendant without any statement that there was a defense to the amended petition; and there were no affidavits, stipulations, exhibits or evidence of any kind presented to the trial court upon which it could base a finding or conclude that the defendant had a valid defense to the allegations of the amended petition.

R. C. 2325.07 is mandatory in prescribing the conditions upon which a judgment may be vacated during term. This statute requires that a hearing be conducted to determine whether there is a valid defense before a default judgment may be vacated. The mere calling of a docket upon which the motion to vacate appears does not give the trial court the right to presume the motion is well taken and there is a valid defense to the amended petition. The statutory requirement that “a judgment shall not be vacated on motion or petition until it is adjudged there is a valid defense to the action” is mandatory.

Reviewing courts have recognized that trial courts of record are clothed with wide discretion in granting motions to vacate judgments, but they do not have absolute authority in this area.

In the instant case, there was nothing before the court upon which it could have made any kind of determination on whether the defendant had a valid defense. Inasmuch as the trial court was without knowledge of any defense, it was impossible for it to exercise any discretion.

Where the trial court did not proceed on its own motion, and did not have any affidavits, stipulations, exhibits or evidence presented to it upon which it could make a judicial determination, its action in vacating a default judgment must be considered to be an abuse of discretion and in violation of R. C. 2325.07.

The judgment of the trial court in granting the motion to vacate the default judgment herein is reversed.

Judgment reversed.

SHANNON, P. J., concurs.