DISCRETIONARY POWER TO VACATE OR MODIFY JUDGMENT.

Court of Appeals for Summit County.

#### A. A. Wybel v. J. M. Sheaffer.

Decided, April 30, 1919.

*Judgments*— Inherent *Poioer in a Court to Vacate or Modify Its Judgments During Term*— Purpose *of Affidavit with Reference to Military Service. '*.

1. The power of a court to vacate or modify its judgments during term is inherent and plenary, and is not controlled by Section 11631, General Code, which relates to vacating and modifying judgments after term.

2. A court is not limited to the grounds set forth in Section 11631, but on' good cause shown may act upon any other ground which in the exercise of its sound discretion it deems sufficient, and the exercise ’. of such discretion will not be controlled by a reviewing court in . the absence of proof of a clear abuse of discretion.

3. The federal statute requiring an affidavit that the defendant is not , in the military service before judgment may be'entered, is for'the protection of those in such service, and the failure to file such an affidavit ismot sufficient ground to set aside a default judgment against a defendant who never was and never claimed to be in the military service, but who appeared in court, was represented by counsel, and failed to raise such issue until after judgment was entered.

*Jonathan 'Taylor,*for plaintiff in error.

*Rockwell & Grant,*for defendant in error.

Washburn, J.

In this action J. Milton Sheaffer, defendant in error, sued A. A. Wybel, plaintiff in error, on several promissory notes.

According to the record, summons was duly served on Weybel on July 27, 1918.

Default judgment was entered on September 3', 1918.'

On September 5, 1918, añ oral application was made to the ¿Curt' by tbe attorney'for "Wybel to'vacate said judgnienL:

*498A hearing was had on said motion; on September 9th, it was overruled, to which ruling an exception was taken, and the matter is now before this court on a petition in error.

A court has control of its judgments and decrees up to the end of the term at which they are entered. It may, at its discretion for good cause shown, set aside and vacate its judgments or modify them. *Huntington & McIntyre*v. *Finch & Co.,*3 Ohio St., 445; *Knox County Bank*v. *Doty,*9 Ohio St., 505; *Niles*v. *Parks,*49 Ohio St., 370; *Marguno and Tomfocaro Co.*v. *Clymonts,*16 C. C. 237, 10 Circ. Dec., 427; *Seelbach*v. *Craft,*21 C. C. (N. S.), 158.

The discretion vested in a court to vacate or modify its judgments during the term is a legal discretion and can not be exercised in an arbitrary manner, or at the mere desire of the court; a justifiable cause for such action must exist. *French Wax Figure Co.*v. *Jupp Baxter Co.,*21 C. C., 761,12 Circ. Dec., 76.

This power of the court is independent of Sec. 11631, General Code, which governs where it. is sought to vacate or modify a judgment *after*term. *(Van Camp*v. *McCulley,*89 Ohio St., 1 (104 N. E., 1004). AVhile the power of the court over its judgments during the term is inherent and plenary, still a judgment can not be set aside except for good cause shown.

One or more of the grounds set forth in Section 11631 would constitute a good cause, but the court is not limited to such grounds; a court may act upon any other ground which in the exercise of a sound discretion it may deem sufficient.

It follows that the control of a reviewing court over this discretion of a lower court is limited to cases where an abuse of discretion is clearly shown.

The controlling question for us to determine, having in mind these well-settled principles of law, is: Does an examination of the record in this ease disclose an abuse of discretion on the part of the trial court in overruling the motion to set aside the default judgment in question?

No written motion was filed and none of the grounds set forth in Section 11631, General Code, existed or were claimed.

The claimed “good cause” for setting, aside .the- judgment *499grows out of the following facts: Before answer day. the attorney for Wybel, being busy in patriotic work, asked the attorney for 'Sheaffer “ if he would object to time being granted for pleading, and he said he did' object to it and wouldn’t grant a minute.” The attorney for Wybél then had a talk with one of the judges in the- hall of the courthouse about further time, and reported to the attorney for Sheaffer that time to plead had been extended a week and the attorney for Sheaffer “didn’t seem rejoiced over the matter, but said nothing, only he looked rather displeased; peeved, so to speak. ’ ’

No entry extending time to plead was made by the court, but the attorney for Sheaffer observed the reported extension of a week’s time, which, if it was an extension,'was irregularly made, in his absence, without his knowledge, and when it was known. that he would object if given an opportunity. After the expiration of the extension the default judgment was entered.

A situation was thus presented in which perhaps it would not have been an abuse of discretion if the court had granted the motion, but the matter as presented to the court was peculiarly a discretionary matter.

When the application was made to set aside the judgment, the judge to whom it was made recognized that the attorney for Sheaffer was in no wise at fault, and justified in insisting upon the rights of his client, but that the time between the answer day and the entry of default was short and there was some merit in the excuse of the attorney for Wybel, and accordingly, the judge considered the proposed answer of Wybel and heard testimony, as to the merits of the controversy and concluded, in view of the doubt there was as to there being any real merit in the proposed defense of Wybel, to exercise his discretion in refusing to grant the motion.

Under all the circumstances, we can not say that he abused his discretion.

It is suggested that the taking of a default without an affidavit being filed showing that the defendant was not in the military service was a good ground for granting the motion for setting aside the judgment.

*500As to this suggestion it is sufficient to observe that no such ground was presented to the court below, that the record shows that Wybel was in court and testified at the hearing on the motion, and that it is not claimed that he was in. fact or ever had been in the military service. Moreover, the record discloses that Wybel had appeared and was represented by counsel in the case before the default was taken. The federal statute requiring such affidavit is for the protection of those in the military service.

Dunlap and Vickery, JJ., concur.