It appears from the record that Louis S. Weiss filed a petition in the Municipal Court of Cleveland for damages alleged to have ensued from the negligent operation of a motor vehicle by Eldred Holbrook. To this petition an answer and cross-petition was filed by Eldred Holbrook. In the cross-petition he sets forth negligent acts on the part of Weiss in the operation of his motor vehicle, which caused injuries to Holbrook. The petition filed by Weiss was dismissed for want of prosecution and for non-compliance with a court order, directing that Weiss submit himself to a physical examination. Weiss' petition was dismissed on October 9, 1935. On the same date, the finding was entered in favor of Holbrook on his cross-petition against Weiss in the sum of $500. On October 15, 1935, a judgment was entered in favor of Holbrook against Weiss in the sum of $500. On October 29, 1935, Weiss filed a motion to vacate the judgment. In that motion he sets forth various grounds for vacation.
"3. That plaintiff has a valid defense against the defendant's cross-petition."
In the affidavit he refers to the petition filed by Weiss against Holbrook wherein it was claimed that the collision and consequent injuries resulted from the negligence of Holbrook.
There was a full hearing on the motion to vacate, in which each side was represented by counsel. As an excuse for the apparent negligence of Weiss in not filing an answer to the cross-petition of Holbrook, it was claimed that Weiss was under the impression that by dismissing his cause of action as set forth in his petition against Holbrook that the entire matter would end. It may well be conceded as a fair inference to be drawn from the record that Weiss was not diligent in presenting his defense to Holbrook's cross-petition. *Page 463
It is well settled as the law of this state that during the term in which the judgment is rendered, the court has control of its orders and judgments and may, as an inherent power, vacate or modify them within its discretion.
Section 11631, et seq., General Code, prescribing the grounds upon which a judgment may be vacated does not limit the court in its control over its orders and judgments during term. FirstNational Bank of Dunkirk v. Smith, 102 Ohio St. 120,130 N.E. 502.
The action of the court will be reversed only for abuse of discretion. Chandler Taylor Co. v. Southern Pacific Co.,104 Ohio St. 188, 135 N.E. 620.
The sole question in the case at bar is whether or not under the circumstances presented in the record the trial court abused its discretion in vacating, during term, the default judgment rendered in favor of Holbrook against Weiss.
The paramount aim of judicial judgment is to render justice between litigants. If a cause of action does not exist, a judgment rendered against the party based upon such alleged cause of action which does not in law exist, would be tantamount to thwarting the ends of justice.
Ulman, Einstein Co. v. Effinger, 11 C.C. (N.S.), 383, 20 C.D., 791, affirmed by the Supreme Court without opinion, 60 Ohio St. 579, 54 N.E. 1101, holds:
1. "A judgment may be set aside for fraud notwithstanding the fact that no defense was made at the time it was rendered, although the defendant was properly served with summons by copy thereof left at her usual place of residence.
2. "A judgment procured against a party on an account which she never owed, nor became either directly or indirectly liable for its payment, constitutes *Page 464 a fraud on the court rendering such judgment, which should be set aside in a proper proceeding brought for that purpose."
In the case of Resnick v. Paryzek, 23 Ohio App. 327,154 N.E. 350, this court held that it is an abuse of discretion to refuse to vacate a default judgment where the motion is made during term and a valid defense is shown on paper.
In Kornick v. Hahn, Admx., 11 Ohio App. 388, this court held:
"Where a judgment is rendered in the absence of one of the parties, and during the same term such party files a motion to set aside such judgment, showing to the satisfaction of the court that there is substantial merit in his claims, the setting aside of such judgment is not an abuse of discretion, even though such complaining party shows little merit in his excuse for his absence."
We may assume, in the case at bar, that Weiss was negligent in failing to file an answer to the cross-petition of Holbrook and in failing to appear in court to present a defense. His negligence, however, does not, in my opinion, determine the question before us. If, despite his negligence, the trial court which entered the default judgment against Weiss, is satisfied after hearing the arguments on the motion for the vacation of the default judgment, that Weiss has a probable defense to the action, it becomes the duty of the trial court to reopen the case by setting aside the default judgment so that the defense may be heard. It would indeed be an extreme punishment for lack of diligence to enter a judgment against the party guilty of such lack of diligence when there is no cause of action against him.
In the original petition filed by Weiss which was afterwards dismissed for want of prosecution, and to which he refers in his motion to vacate, he sets forth *Page 465 a cause of action against Holbrook, alleging acts and omissions, which, if proven, would constitute negligence on the part of Holbrook and a complete defense to his cause of action against Weiss. In his cross-petition Holbrook, after denying that he was guilty of any of the acts of negligence alleged in Weiss' petition, sets forth allegations showing that there was negligence on the part of Weiss in the operation of his motor vehicle. Each one of the parties accuses the other of negligence. If, upon hearing the case on its merits, the court concluded that Weiss was without fault, or that Holbrook, instead of Weiss, was guilty of negligence, there could be no judgment rendered against Weiss. The very purpose of the law which gives the trial court control over its entries made during the term is to enable the court to correct erroneous judgments. The trial court apparently took the view, after hearing the evidence on the motion to vacate, that while Weiss may well be censured for his lack of diligence, the ends of justice require that in view of the fact that Weiss in support of his motion to vacate presented a probable defense by putting the blame for the negligent operation of the motor vehicle upon Holbrook, that the ends of justice require that the default judgment be set aside so as to give Weiss his day in court.
I cannot agree with the majority of the court that the trial court abused its discretion in vacating the default judgment. I hold quite a contrary view.
Relying upon the decisions of this court to which reference has been made, the court would have committed reversible error for abuse of discretion in refusing to vacate the default judgment during term when a valid defense was shown on paper. Resnick v.Paryzek, supra; Kornick v. Hahn, supra.
It is, in my opinion, the prerogative of every trial court to open the door during term and to permit *Page 466 additional information and defenses to be presented so that a correct judgment should be rendered. The fact that the defendant against whom the default judgment was rendered was guilty of negligence in failing to present his defense, does not alter the situation. When the court rendered the default judgment it heard but one side. If on a motion to vacate, the trial court concludes that the defendant against whom the default judgment was rendered has a probable defense, the exercise of sound discretion, with a view of promoting justice between the parties, would require the court to set aside the default judgment and reopen the case for a full hearing on the merits, with both parties present in court.
If we were to limit the power of the court during term to vacate default judgments, and if we were to hold that the court is guilty of abuse of discretion in vacating such judgment on the sole ground that the defendant was negligent in failing to present a defense, we would thereby make it impossible for the court to correct erroneous judgments.
The power to vacate default judgments, when the court finds that there is a probable defense, does not at all depend upon the conduct of the parties to the litigation. It is vested in the court for the purpose of promoting the ends of justice and to enable the court to decide cases according to their true merits. When a default judgment is rendered against the party who has a valid defense, it operates as a fraud on the court which rendered it. Ulman, Einstein Co. v. Effinger, supra.
This elastic power is vested in trial courts as a protection to the court to enable it to efficiently operate. Human justice at most is speculative and it is, of course, subject to error. The cardinal aim of a law suit is to render true judgment according to the merits of the case. It cannot be made to depend upon *Page 467 the conduct of the parties to the suit. Otherwise the court would be rendering judgment as a reward or punishment to either of the parties, depending on their diligence or lack of diligence in prosecuting or defending, regardless of the true merits of the case. This power must be broadened so as to enable the court to approach the ends of justice and render correct judgments according to the merits of the case.
In the case at bar the trial court was under a duty to let in the light and to gain additional information. When, after the hearing of the motion to vacate, the court gained such information and received additional light on the subject, it not only was within the power of the court to vacate the judgment without being guilty of the charge of abuse of discretion, but it was also its duty to vacate the judgment so that the true state of facts would be made known to the court, and impartial judgment rendered accordingly.