Metzger v. Zeissler. same term, on on December 13, the defendants filed their motion to vacate the judgment. The specific ground set forth in the motion being "that the judgment was for more than was due the plaintiff, and that the defendants were not summoned or otherwise legally notified of the time and place of taking such judgment," thus covering the statutory ground provided in the ninth subdivision of Gen. Code 11631. On the last day of the term the motion was heard and at the conclusion of the hearing the matter was continued to the present term for consideration and decision. On the hearing, it developed that the defendants' counsel being in doubt as to the proper course of procedure, and as a precautionary measure, had also filed a petition for the same. purpose and caused summons to issue thereon. This latter action was no doubt prompted by the requirement of Gen. Code 11635, which provides that the proceeding to vacate on the ground mentioned in subdivision nine shall be by petition duly verified. The defendants on the hearing also submitted affidavits not only relating to the ground alleged for vacating the judgment, but also relating to their defense to the note, and setting forth. facts, proper to be considered in a trial on the merits. The presentation of the case was attended with some confusion, growing out of the uncertainty and undefined course of procedure in actions of this kind. The case in this respect does not stand alone. An inspection of the reported decisions discloses that efforts to vacate. judgments at the same term have been pursued variously and indiscriminately along one or more or all of three different lines of procedure, viz: Under Gen. Code Chap. 5 of Div. 3, providing for new trials. Under Gen. Code Chap. 6 of Div. 4, providing for "other relief after judgment"; and by invoking the inherent power of the court to vacate or modify its own judgments during the term at which the judgment was rendered. It is desirable that the practice in matters of such importance should be defined, and have some uniformity and certainty. To this end I will endeavor to prescribe what is deemed 5 Dec. Vol. 22. Wood Common Pleas. proper procedure and apply it in this case, in the hope that it may also afford a fixed rule of practice in similar cases or provoke some reviewing court to promulgate something better. I am aware that the same subject has been considered by other courts, notably by Judge Washburn, in Burrell v. Insurance Co. 15 Dec. 303 (3 N. S. 321), and by the circuit court of this circuit, Judge Haynes delivering the opinion, in Smead Foundry Co. v. Chesbrough, 6 Circ. Dec. 670 (18 R. 783). While the same ideas underlying this opinion were touched upon in those cases, they were not formulated into tangible practicable rules. To do this is the present purpose. Taking up the three methods of procedure hereinbefore referred to in their order: Division 3, Chap. 5 prescribes the method of obtaining a new trial. The heading of this division is "Trial," and the word is defined in Gen. Code 11376. "A trial is a judicial examination of the issues, whether of law or of fact, in an action. or proceeding." The entire division relates to proceedings in contested matters where issues of law or fact, or both, are raised and litigated, and prescribes the conduct of a cause from the commencement of the trial until its termination by verdict of a jury or decision by the court. It takes the litigated case to the point where it is ready for a judgment, but makes no provision for a judgment; neither for the vacation of any judgment. Chapter 5, Gen. Code 11575 to 11581 of this division, provides a remedy by means of a new trial after verdict or decision and before judgment. This chapter, with the exception of Gen. Code 11580 which is adopted in the chapter relating to relief after judgment, has no application and cannot be resorted to in a proceeding to vacate a judgment. The next code provision on the subject is found in Chap. 6 of Div. 4. The heading of this division is "Judgment" and therein is prescribed the manner of giving and entering judgment. Chapter 6 under the title "Other relief after judgment,” among other provisions prescribes clearly and definitely the procedure to be followed to vacate a judgment after the term at which it is rendered. It needs no elucidation in its application to proceedings after the term. And the chapter requires no 1 Metzger v. Zeissler. consideration except in so far as some of its provisions may be applicable to proceedings to vacate a judgment at the same term of its rendition, and this question will be treated in the discussion of the method to be pursued in the last named proceeding. We have noticed all the code provisions specially providing for the vacation of judgments, and find that no procedure is provided by the code for vacating a judgment at the same term at which it is rendered. That such remedy ought to and does exist no one can deny. That a court invested with specific statutory power to vacate a judgment after the term of rendition, is powerless to exercise that function at the same term when it is shown that the judgment is wrong, is not only an absurdity, but in many cases might work injustice and injury. At common law the court is endowed with the power of control over its own orders and judgments during the term at which they are rendered, and the power to vacate or modify them in its discretion. This doctrine, recognized and applied in Huntington v. Finch, 3 Ohio St. 445, and in earlier cases, has been reiterated and reaffirmed in Bank v. Doty, 9 Ohio St. 505 [75 Am. Dec. 479]; Niles v. Parks, 49 Ohio St. 370 [34 N. E. Rep. 735]; Huber Mfg. Co. v. Sweny, 57 Ohio St. 169 [48 N. E. Rep. 879], and other decisions of our Supreme Court and is the settled law of Ohio. The code of civil procedure nowhere abrogates this rule of law. While undoubtedly specific provisions of the code relating to the remedy must prevail over the common law practice, yet where the code is silent as to the method to be employed to secure a remedial right which exists at common law, the right is not thereby lost, nor can it for that reason be denied. When the code was adopted in 1853 its very first provision was this preamble: "The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this code. Its provisions, and all proceedings under it, shall be liberally construed, with a view to promote its object and assist the parties in obtaining justice," and this declaration. is embodied in Gen. Code 10214. This inherent and plenary Wood Common Pleas. power of the court thus affords the remedy, and, as I hold, the only remedy for the vacation of a judgment at the same term of its rendition. It is not an unlimited power, but has certain restrictions and limitations. The common law limitation is that it may be only resorted to in the exercise of a sound discretion. To my mind there are statutory restrictions alike applicable to a proceeding such as this. Chapter 6 of Div. 4 by its general title, "Other relief after judgment," and by the subjectmatter of certain of its sections as well, indicates that these sections which are not restricted to proceedings after the term, should have general application to all proceedings to vacate. Consequently the court in this action has no power to vacate the judgment until it is adjudged that there is a valid defense to the action, as provided in Gen. Code 11637. The question next arising is: For what reasons or upon what grounds may the court vacate its judgment at the same term? Since any of the grounds specified for vacation after the term, if they exist at all, must have had their inception at or before the time of the rendition of the judgment, no reason is perceived why if good after the term, they are not equally good at the same term at which they come into being. I therefore hold that either of the grounds set forth in Gen. Code 11631 which are warranted by the facts of the particular case, may be resorted to. And in addition to these any other reason or ground, dictated by a sound discretion, may afford the basis for the action. This is especially decided in Manguno & Co. v. Clymonts, 10 Circ. Dec. 427 (19 R. 237). Next, how should the exercise of this power be invoked? That the court in a proper case may exercise it sua sponte, subject to the restrictions hereinbefore stated, I have no doubt. If a party seeks to avail himself of the remedy, he may properly do so by motion under favor of Gen. Code 11370. And in a proceeding at the same term, this is the only appropriate method. The filing of a petition in such case is unnecessary and improper, even though the grounds relied on are embraced in the reference made in Gen. Code 11635. This for the reason that the plaintiff is constructively in court when he obtains his judg Metzger v. Zeissler. ment and remains there throughout the term, while his judg ment is subject to vacation or modification by the exercise of this common law power; hence the process of summons is unnecessary to bring him in, and only the usual notice is necessary which is provided to be given of intended action in a pending cause. Another point as to which there is contrariety of opinion is, as to the nature of the showing to be made upon the hearing of the motion. Some take the view as did counsel in this case that upon the hearing of the motion, it is necessary to produce evidence in some form as to the validity of the defense, and here we have affidavits from both sides pertaining to the merits of a case which either party may of right demand shall be submitted to a jury for determination. This showing upon the merits upon presentation of the motion is unnecessary and improper, because the court at that time is not called upon to pass upon the merits of the defense, this is distinctly and pointedly held in Watson v. Paine, 25 Ohio St. 340, and repeated in numerous decisions following. The only question to be preliminarily tried is whether or not grounds for vacation exist. The proof thereof may be made by affidavit or oral evidence or both, and may be controverted in like manner. Whereupon, if ground for vacation is found to exist, issues are to be made up in the regular way on which the validity of the defense is to be determined. The better practice, as I regard it, is to require the defendant moving for vacation to proffer with his motion an answer duly verified, setting forth his defense, which answer should be not merely a general denial of the petition, but should aver facts showing nonliability. This method seems to be countenanced at least in Lee v. Benedict, 82 Ohio St. 302 [92 N. E. Rep. 492]. Summarizing and putting in practical form the course of procedure to be pursued in the vacation of a judgment at the same term of its rendition, it should be as follows: First, the defendant complaining should file his motion in the original action setting forth the grounds upon which the vacation is asked, which may be (a) one or more of the grounds specified in Gen. Code 11631; (b) any other or different grounds which he conceives to be |