Poltis v. Switlinski , 6 Ohio Law. Abs. 565 ( 1928 )

MAUCK, J.

It is unnecessary to cite authorities establishing the nature and extent of the power of a court over its judgments during term time, further than to refer to First Nat’l Bank v. Smith, 102 O.S. 121, where it is held that such power is limited only by the sound discretion of the court. It is not a statutory but a common law power and the rule in Ohio does not differ from that generally prevailing.

That a court may attach reasonable conditions is the almost universal rule. Among other, conditions so imposed may be the refunding of both costs and expenses. 15 R. C. L. 722. ’

In the note to State v. District Court, Ann. Cases 1912 B. p. 249, are collected the author-itiés holding that when an order opening up a default is made on condition that the costs be paid, such payment may be a condition precedent to a new trial.

In' this case we have no means of knowing what lead the trial court to fix the particular conditions imposed. It is significant that the defendants’ motion failed to recite, any reason for the default and the court may have found the defendants’ conduct to have been willful. It was bound to find that extra costs had been made and may have found that extra expenses such as attorney fees, had been incurred. There is no bill of exceptions here, and we indulge every presumption favorable to the action of the trial court. We thus consider the power of the court only, and not the propriety of its exercise.

Resnick v. Paryzik, 154 N E 350 goes to the sufficiency of the defense offered in that case rather than to the authority of the court. It does not touch the power of the court in the exercise of a reasonable discretion to impose conditions upon which the judgment will be opened.

(Middleton, PJ., concurs.)