State Ex Rel Eckstein v. Stroud, Unpublished Decision (4-3-2000)

JUDGMENT ENTRY This cause is an accelerated appeal from a decision of the Fayette County Court of Common Pleas, in which the trial court granted a default judgment against defendant-appellant, William Stroud, in favor of plaintiff-appellee.

Appellant's first assignment of error is sustained for the reason that an answer, even one which is untimely and unpermitted, constitutes an "appearance" for the purposes of Civ.R. 55(A). SeeSuki v. Blume (1983), 9 Ohio App.3d 289, 290-91. Based on our disposition of appellant's first assignment of error, appellant's second assignment of error is rendered moot and is hereby overruled.

Appellant's third assignment of error is overruled for the reason that service of process was completed according to the requirements of Civ.R. 4.6(D).

Accordingly, the judgment of the trial court is hereby reversed and this matter is remanded for a hearing pursuant to Civ.R. 55(A) to permit appellant to show cause why he should be allowed to file a late answer and to show that he had a meritorious defense. See AMCA Internatl. Corp. v. Carlton (1984),10 Ohio St.3d 88, 91.

Pursuant to App.R. 11.1(E), this entry shall not be relied upon as authority and will not be published in any form.

A certified copy of this judgment entry shall constitute the mandate pursuant to App.R. 27.

Costs to be taxed in compliance with App.R. 24.

___________________________________ Stephen W. Powell, Presiding Judge

___________________________________ William W. Young, Judge

___________________________________ James E. Walsh, Judge