John Leonhardt filed a petition in the Cuya-hoga Common Pleas against Stephen Hovanetz wherein he claimed injuries sustained on account of defendant’s negligence, and prayed for judgment.
The case was advanced to be heard as in default and judgment rendered. No notice of this judgment came to defendant or his counsel until after the term of court, whereupon defendant filed a motion to vacate, reciting that prior to the rendition of judgment he had filed a demurrer to plaintiff’s amended petition, but that through error of the clerk, the same was never placed upon the docket. The Court after reading the affidavit reciting the facts, granted the motion and assigned the case for trial on its merits.
Error was prosecuted to reverse the decision granting the motion to vacate. The Court of Appeals held:
1. The procedure to vacate the default judgment was properly had on motion, as error of the clerk or irregularities can be reached and corrected by motion even after term.
2. If the demurrer had been filed prior to the rendition of the judgment, the court would have been powerless to render default judgment without having first disposed of the demurrer, and in the event it was overruled, before giving defendant an opportunity to file an answer.
3. The error of the clerk goes to the very essence of the judgment which was a default judgment, pre-supposing a failure on part of the defendant to file any pleadings.
4. The court was duty bound to correct the clerk’s error and the moment it was corrected, and the demurrer being deemed filed prior to the entering of default judgment, such judgment is of no effect, as there can be no such judgment while a demurrer is pending undis-posed of.
Judgment affirmed.
(Levine, PJ., Sullivan & Farr, JJ., concur.)