224 N.E.2d 775
No. 4-18599County Court of Ohio, Hamilton.
Decided March 2, 1966.
Judgments — Default — Vacating — County court — Procedure — Statutory grounds — Section 2325.01 (G), Revised Code — “Unavoidable casualty” construed.
1. In county court a judgment may be vacated, after ten days from its entry, only by filing of a petition, establishing the existence of one of the grounds stated in Section 2325.01, Revised Code, and showing substantial evidence of a valid defense.
2. In support of an action to vacate a judgment entered by default, “unavoidable casualty” as required by Section 2325.01 (G), Revised Code, is not shown by proof of the judgment debtor’s illness at the time set for trial and the accidental destruction of the summons after service was made.
Mr. Richard D. Haney, for petitioner.
Messrs. Gorman, Davis Hengelbrok, Mr. Robert H. Gorman, for defendant.
UTZ, J.
This cause came on to be heard on February 24, 1966, on the petition of Emma Burske filed November 8, 1965, in Case No. 4-18599, to vacate a default judgment heretofore entered on June 7, 1965, captioned Stephen Shumaker, Plaintiff, v. Emma Burske, Defendant, No. 4-16899, said default judgment having been entered in Area 4 and by entry of the court transferred to Area 3.
For reason which is not known to this court the caption was reversed and assigned the number 4-18599.
To the petition of Emma Burske an answer was filed with interrogatories annexed under case No. 4-18599 docketed December 18, 1965.
On February 19, 1965, motion for summary judgment or in
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the alternative to dismiss the petition heretofore filed to vacate the default judgment was filed and attached thereto supporting memorandum and affidavits by the defendant, Shumaker.
By leave of court answers to interrogatories were filed by plaintiff, Emma Burske.
On the petition to vacate, the record clearly indicates default judgment was granted on June 7, 1965, to the plaintiff, Shumaker, the defendant, Burske failing to appear or otherwise answer or file a defense.
The testimony of Emma Burske is to the effect her dog chewed up the summons and for this reason she failed to appear in court on the date set for trial. Testimony further indicates that illness before and after June 7, 1965, prevented her appearance.
Defendant contends default judgment may be vacated by motion only within ten days after entered — Section 1915.04, Revised Code — this being the only means by which a default judgment may be vacated.
There being no provision as to the term of court of the county court and no provision to vacate by petition, the court must then conclude the ten-day period in which a motion to vacate must be filed shall constitute the term of court, and therefore must look to Section 2325.01, Revised Code, pertaining to vacation by petition in accordance with the law pertaining to courts of record.
Section 1907.371, Revised Code, Proceedings in accordance with law pertaining to courts of record.
Chapters 2301 to 2335, inclusive, Revised Code, in their nature applicable to proceedings in a county court, and in respect of which no special provision is made in Chapter 1907, to 1923, inclusive, Revised Code, apply to such proceedings.
The court therefore in applying the law as found in Section 2325.01, Revised Code, finds that it is incumbent upon the petitioner to establish by a preponderance of the evidence, whether one of the several statutory grounds for vacation of judgment exists, and whether there is substantial evidence of a valid defense.
Therefore, the court finds from the evidence adduced at the hearing and the record that illness and/or lack of knowledge of the date of hearing defendant having been duly served with
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summons is not an “unavoidable casualty,” in compliance with Section 2325.01, Subsection G, Revised Code, which is made by this section a ground for modifying or vacating a judgment after term.
The petition to set aside the default judgment accordingly is dismissed as is the motion for summary judgment.
Petition dismissed.