Interstate Life Assurance Co. v. Raper

Citations

• 78 Ohio St. (N.S.) 113

Syllabus

<p>Rule requiring presentation of journal entry to adverse counsel— Will not apply, when — Power of common pleas to vacate judgment after term — Section 5354, Revised StaUites — Burden upon mover to show irregularity — Evidence insufficient, when.</p> <p>1. A rule of the court of common pleas requiring counsel for the party in whose favor a judgment is rendered to present a journal entry to counsel for the adverse party for his approval or rejection before giving the same to the clerk for entry does not apply to a case where no counsel has in any way indicated an appearance in that court, and where such adverse party is in default. And the rule is the same although the cause was appealed to the common pleas by the adverse party who gave an appeal bond therefor.</p> <p>2. The power of the court of common pleas to vacate its judgment after term upon motion is controlled by section 5354, Revised Statutes. And where the complaint is of irregularity in obtaining the judgment, the burden is on the mover to prove that the alleged irregularity occurred at or before the taking of the judgment.</p> <p>3. Where the evidence does not tend to show any irregularity at or before the taking of the judgment, but only that afterwards counsel for plaintiff out of court expressed to counsel for defendant a willingness to have the judgment vacated provided an answer showing a good defense were presented to him, but before the presentation of any such answer the counsel’s client gave him positive instructions not to consent to such vacation, and for that reason he refused, a case is not made authorizing the court to order a vacation of the judgment.</p>