Van Ingen v. Berger

Citations

• 82 Ohio St. (N.S.) 255

Syllabus

<p>Order of Cincinnati superior court — Suspending execution' in a default judgment — Until trial of the case on its merits — Is Anal order, when — Section 6707, Revised Statutes — Rule of court cannot render nugatory a valid statute — A default judgment cannot he suspended — On motion for alleged irregularity, when — Effect of failure of clerk to note judgment — Court procedure.</p> <p>1. An order by the superior court of Cincinnati, that a default judgment rendered by the same court at a previous term be suspended and execution thereon stayed until the case should be tried on its merits, and granting leave to defendant to file answer, is an order affecting a substantial right in a summary application after judgment, and is a final order within the meaning of section 6707, Revised Statutes, from which error may be prosecuted. (Hettrick v. Wilson, 12 Ohio St, 136; Braden v. Hoffman, 46 Ohio St., 639.)</p> <p>2. A valid statute of the state cannot be rendered nugatory or materially modified by a rule by one of the courts of the state, and if a rule sought to be enforced by any of the courts is found to be in conflict with such statute, the rule will be disregarded.</p> <p>3. A judgment by default, rendered by the superior court of Cincinnati, upon default, in every way regular on its face, cannot be suspended nor execution thereon stayed by that court on a motion filed at a subsequent term for an alleged irregularity in obtaining such judgment where such irregularity consists solely in the failure of the'clerk to note such judgment on' his appearance docket, and of the plaintiff to give notice thereof in the Court Index, a newspaper,' for three successive days, notwithstanding both such acts purport to be required by a rule of that court.</p>