Millers National Ins. Co. v. Waligora , 1924 Ohio Misc. LEXIS 1683 ( 1924 )

SULLIVAN, J.

Epitomized Opinion

Published Only In Ohio Law Abstract

Kaligora insured his automobile in Miller Co. He reported his car was stolen, and the Company paid the loss. Later it was discovered the car had been taken with his consent. Upon receiving the draft of the money, he turned it over to the holder of the mortgage, unbeknown to the Insurance Co., and the latter refused to return the money. The action was brought to recover this sum. When the case was called for trial defendant failed to appear, and judgment was rendered against him. Two weeks later he filed a petition to vacate the judgment on the ground that he had a valid defense, and also that his counsel had not notified him that the case was set for trial. The court vacated the judgment. This is assigned as error. In reversing the judgment, the Court of Appeals held:

1. Failure of attorney to notify client that case is assigned for trial is not unavoidable casualty or misfortune, under 11631 GC. See Waxman v. Wilcox, No. 4481.