In my view, the trial court did not err in concluding that the motion to vacate its entry of revivor was not filed within a reasonable time.
The entry of revivor was filed September 11, 1985. The parties have stipulated that counsel for Jenkins mailed a copy of that entry to counsel for Equities on the same day. It is a reasonable inference that it was received in the mail a few days thereafter, and Equities has not claimed otherwise.
The motion to vacate the revivor was filed in March 1987, after Jenkins had gone to the trouble and expense of filing a foreclosure action to execute the revived judgment. In my view, the trial court was within its discretion in finding that Equities' motion to vacate the entry of revivor was not filed within a reasonable time.
I do not read Atkinson v. Grumman (1988), 37 Ohio St.3d 80,523 N.E.2d 851, or Moldovan v. Cuyahoga Cty. Welfare Dept. (1986), 25 Ohio St.3d 293, 25 OBR 343, 496 N.E.2d 466, as requiring a different result. In my view, Moldovan simply held that a litigant must receive reasonable notice of a judgment before his appeal time can expire. In the case before us, it is undisputed that Equities had actual notice of the entry of revivor in September 1985.
In Atkinson, supra, the Supreme Court has imposed upon trial courts some requirements for the giving of notice of judgments. However, Atkinson is expressly declared to operate prospectively, only. Atkinson, supra, at 86, 523 N.E.2d at 857.
Furthermore, as declared in paragraph two of the syllabus inAtkinson, the mailing of notice of a judgment entry by the clerk in accordance with the rules laid down therein is expressly declared to be sufficient to start the clock running on the time within which to appeal, even if it is clear that the litigant did not actually receive notice; there is nothing in either the text or syllabus of Atkinson to indicate that the mailing of notice of a judgment entry by the clerk in accordance with the rules laid down in Atkinson is necessary to start the appeal clock running when the litigant has had actual notice of the judgment.
My understanding of the rationale behind the Moldovan andAtkinson decisions is the need to protect a litigant's right to appeal from a judgment, or to pursue other remedies with respect to the judgment, by taking reasonable steps to ensure that the litigant is made aware of the judgment. I do not understand that rationale to extend to providing unlimited time to a litigant within which to attack a judgment of which he has had actual notice, simply because of a deficiency in the steps taken to ensure that he got notice. To *Page 91 extend the holdings in Moldovan and Atkinson so far seems to me to come perilously close to exalting form over substance.
I would overrule the assignments of error and affirm the judgment of the trial court.