The proceeding in the commercial court of' Cincinnati was an action of assumpsit, brought by Reynolds to recover
The defendants then offered in evidence a copy of the record of a judgment, recovered by Reynolds against Stansbury, in the superior court of Cincinnati, at the January term, 1847, for $410.97, and offered to prove by parol, that the cause of action in that suit, and the one mentioned in the record, were the same. To this evidence the plaintiff objected. The objection was overruled by the court, and the evidence admitted.
The plaintiff then offered a record of proceedings had in the superior court of Cincinnati, showing that the judgment of Reynolds against Stansbury had been set aside at the January term of that court, 1849, on motion of the plaintiff Stansbury. This record does not show affirmatively that Stansbury had notice of the motion to set aside the judgment, nor does it show for what cause the judgment was vacated. Tne defendants objected to the admission of this record, “because not showing that Stansbury had notice of the motion, or for what cause the judgment was vacated, the court had no authority, at a subsequent term, on motion, to sot aside the judgment.” The court sustained the objection, and refused to permit this record to go in evidence; to which ruling of the court the ^plaintiff excepted. The jurj- returned a verdict for the defendant. The plaintiff has assigned for error the rulings of the court above referred to, in admitting the record of the recovery of the judgment in the superior court, and refusing to permit the record of the court setting aside that judgment to go in evidence, and also claiming that the court erred in their charge to the jury, which is set forth in the bill of exceptions. It is contended, in the first place, that the court erred in permitting the record to be given in evidence under the general issue, without notice.
In the case of Young et al. v. Black, 7 Cranch. 565, this same
In 1 Phillips’ Evidence, page 243, the author states the rule thus: “In an action of assumpsit, the defendant may either plead a judgment recovered, or give it in evidence under the general issue.”
In 1 Greenleaf’s Evidence, section 531, it is laid down as well settled that a former recovery may be shown in evidence under the general issue, as well as pleaded in bar. The plaintiff relies on the case of Inman v. Jenkins, 3 Ohio, 271. The court in that case decide that a judgment of a former recovery can not be given in evidence under the general issue, without notice. That is a circuit decision, and is, as we think, contrary to the current of authority on the subject. Indeed, so far as our examination has extended, the decisions are all on the other side. We think, then, that the commercial court decided correctly in admittingthe record under the plea of the general issue.
The next question which we propose to consider is whether ^the court decided correctly in ruling out the record showing that this judgment had been set aside by the court. And this necessarily presents the other question—whether the court could treat this record, in a collateral proceeding, as a n-ullity. This is no doubt a question of some difficulty. It is contended in the first place, on behalf of defendants in error, that the term of the court at which the judgment was entered having passed, the judgment was beyond the control of the court, and that it could not, as in this case, at a subsequent term, set it aside. The question whether’ a court has the power, on motion, to set aside a judgment entered at a previous term, for irregularity, is one that has been frequently adjudicated in this state.
In the case of Hunt et al. v. Yeatman, 3 Ohio, where the question was directly presented, the court held that the power of a court to set aside a judgment for manifest irregularity, was one that was exercised by all courts; and that the power may be ex-
The ease of Critchfield v. Porter, 518 of the same volume, was on a bill in chancery, where the complainant sought to be relieved against a judgment rendered against him, on the ground that the attorney who appeared for him and plead had no authority to act, and that ho had not been served with process. The court dismissed the bill on the ground that the complainant had a clear and ample remedy at law, by motion to have the judgment opened, although the term of the court at which it was entered had passed.
In the cases of Shelton v. Gill, 11 Ohio, 419; Sloo v. Lea, 18 Ohio, 307; and Abernethy v. Latimore, 19 Ohio, 288, the court fully recognized the same principle. The courts in New York appear to have adopted the same rule. Phillips v. Howley, 6 Johns. 129, and Morgan & Smith v. Dyer, 9 Johns. 255, are both cases in which the court held that it was ^competent for a court to open a judgment on motion, for good cause, at a term subsequent to the one at which it was rendered.
In Indiana, North Carolina, and some of the other states, the contrary rule has been established. See 7 Blackf. 334; 7 Iredell, 346. There, no doubt, is a direct conflict between the decisions on this subject. Still we must consider the rule as settled in Ohio, that a court, in a proper case, has the power, on motion, to set aside a judgment entered at a previous term. And we suppose that that power must be limited to cases where there has been irregularity in entering the judgment.
It may be proper here to remark, that all the authorities to which we have referred, as sustaining the power of the court to set aside a judgment in such a case (except that of Sloo v. Lea, 18 Ohio), are cases where the right to set aside the judgment was sought by the defendants to it.
It is not likely that the case would frequently occur in which a plaintiff would ask to sot aside his own judgment. Yet still, when the power of the court has once been established over a judgment at a subsequent term from that at which it is entered, we do not see but that a case might arise where an irregularity had crept into a judgment, without the fault of the plaintiff, where
But it is said that the record in this case does not show that Stansbury had notice of the motion to set aside the judgment; and, therefore, the court did not acquiro jurisdiction in the'matter. Now we suppose, as the proceeding was an adversary one, and one that affected the rights of Stansbury, that it was necessary he should have notice, in order to invest the court with jurisdiction. But the record does not state whether he had or had not notice. It is entirely silent on the subject.
It is a principle well established, that to support the judgment or proceedings of a court of inferior and limited jurisdiction, it is-necessary that it should be shown from the face of the record that the court had obtained jurisdiction of the person of the defendant; but that in favor of the proceedings of a court of general jurisdiction, it is presumed that it had jurisdiction of the-person of the defendant, although that fact does not appear on the record. (1) In order to impeach the proceedings of a court of general jurisdiction, collaterally, it is necessary that the party impeaching it should prove affirmatively that process was not
The judgment of the commercial court will be reversed, and the cause remanded for further proceedings.
(1).
Judge Spalding held, that notice might be presumed, not to bring the-parties into court, originally, but to uphold subsequent proceedings. (1)
(1.
) Spencer v. Brockaway, 1 Ohio, 259.