Waxman v. Wilcox , 1923 Ohio Misc. LEXIS 1711 ( 1923 )

POLLOCK, J.

Epitomized Opinion

Wilcox sued Waxman in Cleveland Municipal Court on an account for tuition owed him for Wax-man’s daughter. Default judgment was taken. At the next term, Waxman brought an action to vacate the entry, claiming (1) the court erred in dismissing the action to vacate the judgment without giving Waxman the right to be heard, and (2) it was contrary to law to dismiss this action. The motion was overruled. The trial court’s action was assigned in error. In the action to vacate the judgment Waxman alleged that when summoned on Wilcox’s action she turned papers over to the Ohio Service Company to represent her; that .after the default judgment she discovered that the company were not attorneys and had not represented her. In affirming judgment of the lower court the Court of Appeals held:

1. Even if it was error for the trial court to dismiss the action to vacate judgment without giving a right to be heard, by GC. 1163Í, the court may vacate or modify a judgment after the term for unavoidably casualty or misfortune preventing a party from prosecuting or defending, and her pleading did not set out facts entitling her to relief under the statute.

2. Granting the default judgment was taken by the negligence of the company, they were her agents and their negligence would be her negligence. Negligence cannot be construed to mean; either unavoidable casualty or misfortune.