Louis S. Weiss instituted suit in the Municipal Court of Cleveland against Eldred Holbrook who was served with summons and filed an answer and cross-petition against Weiss. When the case was called in due course for trial on October 9, 1935, Weiss did not appear. His petition was dismissed for want of prosecution. After hearing the evidence on the cross-petition, the court entered judgment for Holbrook for Five Hundred Dollars against Weiss. On October 25, execution was issued on the judgment and levied against the automobile of Weiss. On October 29 Weiss filed a motion to vacate said judgment. On November 15 the motion was granted, the judgment vacated and the property seized under the execution was ordered released. No terms, conditions or penalties were imposed upon Weiss and the property levied upon was released absolutely and unconditionally.
Holbrook feeling aggrieved filed error proceedings and prayed that the action of the trial court in vacating *Page 459 said judgment be reversed because the trial court exercised an unusual, flagrant and gross abuse of discretion therein.
The only subject for our inquiry is: Did the trial court abuse its discretion?
It will be noted that the vacation of the judgment was made by the trial court at the same term in which the judgment was rendered. It is invariably held that during the same term the trial court may vacate a judgment within its sound discretion. This power of the court is not unlimited. It is not an arbitrary or autocratic power. It is limited to the exercise of sound judicial discretion. When the court abuses that discretion its action may be reversed on review. Do the facts in this case show an abuse of discretion? We will further review the facts in addition to the general statement made in the opening hereof.
Holbrook took a complete record of the evidence and proceedings in the trial of the case wherein judgment was rendered in his favor and of the hearing on the motion to vacate the judgment, all of which together with his exceptions constitute his bill of exceptions.
So far as we can ascertain the record is entirely devoid of the least plausible excuse or reason for the action of the court in vacating the judgment.
Weiss instituted the suit which was prepared and filed by his attorney. Then Holbrook filed a motion to make the petition definite and certain, which motion was granted. An amended petition was filed to which Holbrook filed an answer and cross-petition, a copy of which was sent to the attorney for Weiss. Due notice of the filing of the answer and cross-petition was communicated to Weiss by his attorney and he was advised of the necessity of filing an answer to the cross-petition. He wholly disregarded this advice of his own lawyer, his only response to his own lawyer's importunities was that he was quite busy. *Page 460
Counsel for Holbrook, on proper motion, procured an order of the court for physical examination of Weiss by a certain designated physician and made arrangements with Weiss' attorney to have his client Weiss submit to a physical examination at a designated time and place. Weiss failed to keep the appointment. His counsel called him several times by phone to get him to comply with the order of the court to submit to physical examination. The only response he made to the requests was that he was very busy and would get there when he was in position to do so; that this was his rush season and he was not sure he could get there at the stated time. He never did comply with the order of the court. His business was that of a furrier.
Before the case was called regularly for trial his lawyer telephoned a message to his place of business advising him of the fact. Weiss does not deny that he got this message. His only excuse for not taking care of this litigation that he started seems to be that his own business just then was more important than the business of the court. His own lawyer wrote to him: "It is incumbent upon me, as your attorney, to file an answer to the cross-petition filed against you in this case. I have written you several times concerning this matter, but to date I have not heard from you." His lawyer advised him he had been sued for One Thousand Dollars.
This was not the first litigation Weiss had had. This same lawyer represented him in other matters.
Weiss does not deny any of these statements. In fact, although Weiss was present in court at the hearing of his motion to vacate the judgment, he was not called as a witness. But he appeared with a new lawyer who advanced the argument to the court that Weiss did not appear at the trial because of "the belief *Page 461 that the dismissal of his petition would dismiss the cross petition."
This statement is merely the word of the new lawyer unsupported by affidavit or sworn testimony of Weiss. It should therefore have been wholly disregarded, and in view of Weiss' conduct as disclosed by his neglect and disregard of his own lawyer's requests, we do not deem the so-called "belief" that the cross petition would be dismissed worthy of consideration, even if it had been supported by affidavit or sworn testimony of Weiss.
Weiss has wilfully failed to comply with the order of the court for physical examination. He wilfully failed to sign an answer to the cross-petition as requested by his lawyer and he failed to respond on the day set for his trial. He slept upon his rights not inadvertently but wilfully. There was no remaining grace for him to have the judgment vacated and the execution on his automobile released.
The court acted without reason and arbitrarily in vacating the judgment and abused his sound judicial discretion. The ruling of the court is hereby reversed and the case is remanded with instructions to overrule the motion of Weiss to vacate the judgment.
To place judicial sanction upon the actions of Weiss in this case, as disclosed by the record, and thereby grant to him the relief prayed for in his motion, would be to ruthlessly disregard the rights of Holbrook. It would be placing a premium upon the disregard of the orders of the court and violations of all rules of procedure of court and legislature. It would amount to judicial permission for the litigant to wilfully ignore his adversary litigant and the court with impunity. The orderly process of justice cannot countenance such actions.
Judgment reversed.
LIEGHLEY, P.J., concurs in the judgment. *Page 462