Opinion
No. 40488
Decided April 26, 1967.
Default judgment — Motion to vacate, during term, overruled — Inherent power of court — Exercise of discretion — Reversal of order by Court of Appeals not justified, when.
APPEAL from the Court of Appeals for Cuyahoga County.
A default judgment was entered against defendant in the Common Pleas Court of Cuyahoga County, Ohio, on October 13, 1965, in the sum of $6,500. The defendant's motion to vacate this judgment, made within the same term of court, was overruled by the trial judge after a hearing at which testimony was adduced that defendant had been insured by the Allstate Insurance Company, which company had been notified of the pendency of the action against its insured prior to the date of the default judgment and had retained counsel to defend the action. The evidence adduced showed also that by reason of an oversight of such counsel no appearance was made on behalf of the defendant-insured until December 1965 when the motion to vacate the default judgment was filed. The Court of Appeals vacated and set aside plaintiff's judgment in the trial court for the stated reason that "the negligence of counsel [in failing to defend the action] was erroneously imputed to the defendant when the defendant himself committed no act or omission which would have avoided the consequence of his attorney's negligence."
The cause is before this court pursuant to the allowance of a motion to certify the record.
Mr. Gordon T. Canning, Jr., and Mr. John V. Donnelly, for appellant.
Mr. Arthur J. Stern and Mr. Stanley S. Keller, for appellee.
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.