Lee v. Benedict , 82 Ohio St. (N.S.) 302 ( 1910 )

By the Court.

It is manifest that, upon the record here presented, the judgment of the circuit court should be affirmed. Whatever irregularities, or errors, if any, attended the rendition of the judgment of February 23, 1909, it was not absolutely void, and no ground was shown justifying its unqualified vacation. It was the duty of the trial court, therefore, on the hearing of the motion, before entering any judgment to first find and adjudge that there had been shown a valid defense to the action, and then, upon finding that the irregularity complained of 'had been proven, to suspend the judgment until the cause should be tried on its' merits. Whatever irregularities may have been proven at the hearing of the motion, there was no justification in law for the final judgment that was rendered. Watson v. Paine, 25 Ohio St., 340; Follett v. Alexander, 58 Ohio St., 202.

It -is just possible that this court, if a full record' had been presented, might dispose of the motion finally at this-time, but that cannot be done on the meager and very unsatisfactory record before us. If the motion should be again heard it is presumed that counsel will see and act upon the importance of a full bill of exceptions, or at least a finding of the controlling facts, and a complete record, should a review be desired. The judgment of the circuit court will be affirmed and the cause remanded to the court of common pleas with directions to hear the motion to vacate, and for any further proceedings that may be necessary.

Judgment affirmed.

Summers, C. J., Spear, Davis, Shauck and Price, JJ., concur.