Bulkley v. Greene

Citations

• 98 Ohio St. (N.S.) 55

Syllabus

<p>Judgments — Petition to vacate — Pleading and procedure — Section 11636, General Code — Trial by jury — Grounds to vacate — Section 11635, General Code — Counterclaim.</p> <p>1. When a petition to vacate a judgment is filed by a defendant, he</p> <p>must present therewith his defense to the action sought to be vacated. The grounds for vacation are heard and determined by the court upon the preponderance of the evidence, and if the defense is adjudged legally valid, and the grounds be sustained, the order of modification or vacation of the former judgment is held in abeyance until the final determination of the issues joined in the original action.</p> <p>2. If the court, under the provisions of Section 11636, General</p> <p>Code, decides the preliminary issue in favor of the defendant and sustains his ground for vacation, the issues of fact joined in the original action are triable to a jury, or to the court if not a jury issue or a jury be waived.</p> <p>8. A counterclaim cannot be made available under Section 11635, General Code, as a basis to vacate a judgment by confession. Such is not a defense to the action within the purview of that section.</p>