Lee v. Benedict.
Revieiuing court to pass on alleged errors — On motion to vacate judgment• — Requires finding of forts or bill of exceptions— Error for court hearing such motion to enter judgment, when.
1. To enable a reviewing court to properly pass upon alleged errors occurring at the hearing of a motion in the court of common pleas to vacate a judgment of a previous term for irregularity in obtaining such judgment, there should be presented a record including a finding of facts, or a bill of exceptions showing all the evidence given at the hearing.
2. Proper practice in such case requires that the court, upon the hearing of such motion, should first pass upon the ground of irregularity charged and if sustained and the defendant had shown what in law if established would- be a defense, then order the judgment suspended- until the cause should be tried on its merits. And it is error for the court, upon the hearing of such motion, to enter final judgment of vacation. Watson v. Paine, 2S Ohio St., 340; Pollett v. Alexander, 58 Ohio St., 202, approved and followed-.
(No. 11946
Decided June 7, 1910.)
Error to the Circuit Court of Cuyahoga coúnty.
From the very scanty record printed in this case it appears that the controversy between the parties originated in a suit before a justice of the peace, and was appealed to the common pleas, the petition of the plaintiff below, F. W. Benedict, being filed in that court August 7, 1908. The party sought to recover the sum of one hundred and sixty dollars for commissions claimed to be due plaintiff for services rendered in and about the leasing of certain buildings in the city of Cleveland. No answer, or other pleading, having been interposed by defendant, and the cause standing on default, the *303court of common pleas, on February 23, 1909, rendered a judgment for plaintiff for the amount claimed with interest. On April 21, following, the defendant, Louis J. uee (plaintiff in error in this court), filed in the common pleas a motion to vacate and set aside the judgment rendered against him of February 23, 1909, and later, to-wit: April 28, 1909, an amended motion seeking the same relief, the motion being based on section 5357, Revised Statutes, and the ground stated therein being irregularity in the manner of obtaining the judgment. That motion was heard and sustained May 5, 1909, the court thereupon rendering judgment against plaintiff for costs, and further adjudging: “And said judgment is hereby vacated and set aside, and this cause is reinstated on the docket.” On error to the circuit court this judgment was reversed. To obtain a reversal of the latter judgment this proceeding is prosecuted.
Mr. John A. Thompson, for plaintiff in error.
Mr. Geo. A. Groot, for defendant in error.
By the Court.
It is manifest that, upon the record here presented, the judgment of the circuit court should be affirmed. Whatever irregularities, or errors, if any, attended the rendition of the judgment of February 23, 1909, it was not absolutely void, and no ground was shown justifying its unqualified vacation. It was the duty of the trial court, therefore, on the hearing of the motion, before entering any judgment to first find and adjudge that there had been shown a valid defense *304to the action, and then, upon finding that the irregularity complained of 'had been proven, to suspend the judgment until the cause should be tried on its' merits. Whatever irregularities may have been proven at the hearing of the motion, there was no justification in law for the final judgment that was rendered. Watson v. Paine, 25 Ohio St., 340; Follett v. Alexander, 58 Ohio St., 202.
It -is just possible that this court, if a full record' had been presented, might dispose of the motion finally at this-time, but that cannot be done on the meager and very unsatisfactory record before us. If the motion should be again heard it is presumed that counsel will see and act upon the importance of a full bill of exceptions, or at least a finding of the controlling facts, and a complete record, should a review be desired. The judgment of the circuit court will be affirmed and the cause remanded to the court of common pleas with directions to hear the motion to vacate, and for any further proceedings that may be necessary.
Judgment affirmed.
Summers, C. J., Spear, Davis, Shauck and Price, JJ., concur.