Cleveland Trust Co. v. Kolar , 102 Ohio App. 367 ( 1955 )

It should be emphasized that this appeal is here not on the merits, but only from a preliminary order of the trial court, the effect of which was merely to suspend the judgment previously confessed on a warrant of attorney, pending trial on the merits, the action being predicated upon a petition to vacate filed after term, pursuant to the applicable statutes.

The trial court having found that the answer presented and filed was sufficient in law, and having made an entry temporarily suspending the judgment, it was not within the province of the trial court, nor is it within the jurisdiction of this court, to adjudicate at this time the issues raised on the merits by the pleadings.

This case is distinguishable from Commonwealth Loan Co.,Inc., v. Firestine, 148 Ohio St. 133, 73 N.E.2d 501, 172 A.L.R., 993, which was decided by the Municipal Court upon a motion, within term, when the court had complete control of its docket, and, in overruling the motion to vacate the cognovit judgment, made findings of fact and conclusions of law which were immediately dispositive of the issues there presented, and the facts so found were binding upon the appellate court and the Supreme Court.

The cases of Roberts v. Davis, Admr., 66 Ohio App. 527,35 N.E.2d 609, and Alliance First National Bank v. Spies,158 Ohio St. 499, 110 N.E.2d 483, 35 A. L. R. (2d), 1446, are more closely analogous. In my opinion, the preliminary procedure in the instant case was sufficient to entitle the defendant to a suspension of the judgment and a complete trial of the cause on the issues presented by the pleadings. The judgment of suspension entered by the Court of Common Pleas should be affirmed and all existing liens preserved pending determination of the cause on the merits.