De Cristoforo v. Kepp , 90 Ohio Law. Abs. 449 ( 1962 )

Collier, J.

The plaintiff-appellant, Giovoni De Cristoforo, obtained a default judgment against the defendant-appellee, Daniel M. Kepp, on January 2, 1960, in the Municipal Court of Cleveland. The action was for personal injury alleged to have been sustained by tbe plaintiff when he was bitten by a dog owned by tbe defendant.

On February 8, 1962, tbe plaintiff filed an affidavit in aid of execution on tbe judgment. On March 5, 1962, the defendant filed bis petition to vacate tbe judgment on tbe ground that be bad not been served with process. On April 20, 1962, tbe trial court vacated tbe default judgment and gave tbe defendant leave to file bis answer. From this judgment tbe plaintiff has perfected bis appeal on questions of law to this court.

Two questions are presented for determination in this appeal : 1) Is an order vacating a judgment after tbe term in which it was rendered a final order and subject to review? 2 Ohio Jurisprudence, 656, Section 70, reads:

“Where tbe motion is filed at a subsequent term, tbe order vacating or setting aside tbe judgment has generally been held to be a final order for purposes of appeal on questions of law.”

And in tbe case of Kahn’s Jewelers v. Truss et al., 112 Ohio Ohio App., 341, 176 N. E. (2d), 310, tbe first beadnote reads:

“An order vacating a judgment after term is a final, appealable order.”

Tbe first question must be answered in tbe affirmative.

2) Was the evidence sufficient to support tbe order vacating the default judgment? An examination of tbe bill of exceptions discloses that tbe summons was served on tbe defendant by mail in conformity with tbe provisions of Section 2703.23, Revised Code, and Rule No. 7 of the Cleveland Municipal Court; that a copy of the summons was deposited in tbe mail and addressed to tbe defendant at bis place of residence, and that tbe envelope was not returned by tbe postal authorities.

This evidence uncontroverted showed good service of process on tbe defendant. However, tbe defendant and bis wife deny that tbe letter containing tbe summons was ever received and claim that they bad no knowledge of tbe default judgment until tbe proceeding in aid of execution was begun.

Thus tbe evidence to establish tbe ground for vacating the judgment is in conflict.

Tbe record (P 13) also shows:

“(Discussion was held of tbe record)

“The Court: It is stipulated that in lieu of testimony it is agreed you do have a valid defense. Is there anything further on either side ? ’ ’

The general rule is that where the evidence is in conflict and there is credible evidence to support the judgment, a reviewing court will not disturb the finding or judgment of the trial court. In the case at bar with the evidence to rebut the presumption of regularity of service of summons on the defendant in conflict and the stipulation that the defendant had a valid defense to the original action, the trial court was correct in vacating the judgment.

The judgment is, therefore, affirmed.

Rad cliff, P. J., and Brown, J., concur.