dissenting. I strongly dissent to the majority’s result for two basic reasons. First, the facts of this case do not, contrary to the majority’s finding, demonstrate that the trial court abused its discretion in finding that appellant was not entitled to relief from judgment under Civ. R. 60 (B). Secondly, the majority, by concentrating its primary focus on whether the underlying dismissal in this case was proper under Civ. R. 41, improperly allows a Civ. R. 60 (B) motion to be used as a substitute for appeal.
In the memorandum which accompanied his Civ. R. 60 (B) motion, appellant asserted simply that he was seeking relief “* * * because, through no fault of his own, his attorney resigned from the case, and in spite of diligent efforts * * * [he] was unable to obtain substitute counsel until now.” Appellant further stated that “[c]ertainly, this set of circumstances places * * * [his case] within the aegis of excusable neglect * *
Notably, no affidavit or any other supporting evidence whatsoever accompanied appellant’s motion.1
Nonetheless, and perhaps in an attempt to give appellant every opportunity to prove his case, the trial court afforded appellant an oral hearing on this motion. The transcript of this hearing, however, has not been made a part of the record of this case. This court has previously held that under such circumstances, the reviewing court “ * * has no alternative but to indulge
the presumption of the regularity of the proceedings and the validity of the judgment in the trial court.’ ” Ostrander v. Parker-Fallis (1972), 29 Ohio St. 2d 72, 74 [58 O.O.2d 117].
Resultantly, then, the only evidence before this court in support of the claim of excusable neglect is appellant’s bold, unsubstantiated allegation in his memorandum in support of his motion that he was unable to retain counsel. It is upon this bare allegation that the majority herein finds that the trial court abused its discretion in denying appellant's Civ. R. 60 (B) motion. This assertion alone is clearly inadequate to support a finding of excusable neglect let alone a finding that the trial court acted unreasonably, unjustly or with an unconscionable attitude,2 as the majority so finds, in reaching its results.
In my opinion, the appellant has not met his burden of proof3 that the *353judgment rendered resulted from excusable neglect. Since appellant has failed to meet one of the three prongs necessary for relief pursuant to Civ. R. 60 (B), appellant’s claim must fail and this court need not consider whether the other two prongs of the test were met. See GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St. 2d 146 [1 O.O.3d 86].
While I am indeed troubled that the majority has relied on so very little not only to grant the appellant so much but to also find that the trial court abused its discretion, the majority opinion is disconcerting for yet another, more fundamental reason. The major focus of the majority opinion and the bulk of its discussion relates to whether the underlying dismissal in this case was proper under Civ. R. 41. Such a focus is clearly misplaced. The proper focus in this case should be on whether appellant’s failure to get a new attorney constituted excusable neglect. The proper way to challenge the propriety of the trial court’s dismissal is through appeal, not by way of a Civ. R. 60 (B) motion.4 By allowing a Civ. R. 60 (B) motion to become a substitute for a right of appeal, the majority has severely undercut the integrity of our judicial system. Not only has the majority aided appellant in his attempt to circumvent the applicable statute of limitations set forth by the General Assembly, it has also severely undermined the concept of finality of judgments as that term is used in Ohio jurisprudence.
Holmes, J., dissenting. The specific issue presented here is whether the appellant, upon motion to vacate a judgment pursuant to Civ. R. 60 (B), has demonstrated that he falls within one of the grounds set forth in Civ. R. 60 (B)(1) through (5). Here, appellant argues that he would come within the purview of Civ. R. 60 (B)(1), “excusable neglect.” Thus, the question becomes, was appellant’s failure to get a new attorney, after having been ordered to do so twice by the trial court, excusable neglect. At the outset, it should be noted that it is not the propriety of the trial court’s order which is being challenged here, for to directly challenge the propriety of the trial court’s order would be to allow Civ. R. 60 (B) to become a substitute for a right of appeal. Rather, the question is whether appellant’s failure to comply with this order is excusable.
In my view, appellant has failed to demonstrate that his neglect was in any way excusable. Appellant was informed by his former counsel on September 30, 1980, more than five months before his suit was dismissed, that he must obtain new counsel or risk dismissal. In the ensuing five months he was warned twice by the trial court that he would risk dismissal if he was Unable to secure new counsel. He failed to do so.
Accordingly, the judgment of the court of appeals should be affirmed.
The first evidence of his alleged difficulty in retaining counsel was submitted by appellant, in the form of an affidavit, as part of the brief to the court of appeals which appellees request, by way of a motion to this court, to be stricken from the record.
“Judicial discretion" was defined in Krupp v. Poor (1970), 24 Ohio St. 2d 123 [53 O.O.2d 320], paragraph two of the syllabus, as follows:
“Judicial discretion is the option which a judge may exercise between the doing and not doing of a thing which cannot be demanded as an absolute right, guided by the spirit, principles and analogies of the law, and founded upon the reason and conscience of the judge, to a just result in the light of the particular circumstances of the case.”
See Colley v. Bazell (1980), 64 Ohio St. 2d 243 [18 O.O.3d 442],
7 Moore, Federal Practice (2 Ed.) 217, Paragraph 60.18[8].