Reynolds v. Stansbury and Burch.

II. The the court erred in charging that the judgment in the superior court was a bar to the recovery in this suit. Pierce v. Kearney, 5 Hill, 85; Naughten v. Patridge, 11 Ohio, 232; 3 Johns. Cases, 72, n. a, 2 ed.; Brazee v. Payntz, 3 B. Mon. 178; Watson. v. Olven, 1 Rich. 111.

III. That the court erred in rejecting the record offered by the plaintiff, showing that the judgment in the superior court had been set aside, and in refusing to permit the plaintiff to prove that fact.

The ruling of the court below, on this point, can not be sus347] tained, unless this court is willing to decide that a court of general jurisdiction has no power, for any cause whatever, on motion, at a subsequent term to the rendition of a judgment, to set aside that judgment. This power, and the exercise of it, by motion, is fully recognized in the English and American courts, and is indispensable to the administration of justice. In the language of Judge Sherman, repeated by Judge Wood, and recognized by Judge Hitchcock, it has long since become one of the plain and accustomed remedies of a court of law. Hunt v. Yeatman, 3 Ohio, 15; Critchfield v. Porter, 3 Ohio, 518; McKee v. Bank of Mount Pleasant, 7 Ohio, 175, 187, pt. 2; Sloo v. Lea, 18 Ohio, 307; Shelton v. Gill, 11 Ohio, 419; Hitchcock, C. J., in Abernathy v. Latimore, 19 Ohio, 288; De Medina v. Grove, 59 E. C. L. 170. For the purposes of jurisdiction all parties properly in court at the commencement of the case remain so until satisfaction of the judgment is had and entered of record.

It is unnecessary to discuss the question whether notice to the other party was or was not necessary. The superior court is a court of general jurisdiction: if it had the power, upon notice to the other party, and for good cause shown, to set aside the judgment, then there was error in the ruling of the commercial court.

The legal presumption is that every step which it was necessary to take for the legal and proper exercise of that power by the superior court was duly taken before the power was exercised. The action of the superior court can not be impeached collaterally. Until reversed, or set aside, the order vacating the judgment remains, and there is no judgment in force. Robertson v. Smith, 18 Johns. 459; Sloo v. Lea, 18 Ohio, 307.

T. WALKER, for defendants:

The questions of law arise upon the following points:

Reynolds v. Stansbury and Burch.

I. Defendants, under the general issue, offered the record of *a former recovery by the plaintiff in the superior court [348 against Stansbury alone, for the same cause of action, as proved by parol, to which the plaintiff excepted. But the court admitted the record; and we insist that it was rightly done, and was a bar. See 1 Greenleaf's Ev., sec. 531; 3 Cowen & Hill's Notes to Phillips on Ev. 838; Henderson v. Reeves, 6 Blackford, 101. Indeed, although there was an early decision on the circuit to the contrary (see Inman v. Jenkins, 3 Ohio, 271), yet we understand the practice has for years been settled throughout the state to receive such evidence under the general issue.

II. But plaintiff then offered the record of an ex parte order of the superior court, at a subsequent term, setting aside the judgment, which was regular upon its face, on motion of plaintiff, without any notice given or reasons assigned, to which the defendants objected, and the court sustained the objection. We insist that the court was right.

When a judgment has once been regularly entered, and the term expired, it has passed from the control of that court, and become a fixed thing. A higher court may reverse it, or it may be impeached for fraud; but in no other way can it cease to be a judgment.

There was no reason assigned or notice given. It was purely an ex parte proceeding. This, indeed, makes no difference, except to exhibit more strikingly its anomalous character. For in Brackenridge v. McCulloch, 7 Blackford, 334, a case almost identicalwith this, it was held that the judgment could not be vacated even by scire facias, when there must be both notice and cause shown. And the doctrine is carried still further in Assignees of Medford v. Dorsey, 2 Wash. C. C. 433.

In Bodkin v. Commissioners of Pickaway, 1 Ohio, 375, it was held that a final judgment could not even be amended at a subsequent term, except in matter of form. We doubt the propriety of even this exception.

In Reed v. Hatcher, 1 Bibb, 346, the same doctrine was *held as in the cases from Blackford and Washington. See [349 also 6 Howard's Miss. 114; 1 Smedes & Marshall, 391.

CALDWELL, J. The proceeding in the commercial court of Cincinnati was an action of assumpsit, brought by Reynolds to reccver

Reynolds v. Stansbury and Burch.

the price of a quantity of tobacco, which he claimed to have sold to the defendants, Stansbury & Burch, as partners. The defendants plead the general issue, and claimed that no partnership existed between them, and that Burch had nothing whatever to do in the purchase of the tobacco. The plaintiff having offered evidence for the purpose of proving the sale of the tobacco, and tending to prove the partnership of defendants, gave in evidence a bill of exchange for $487.77, dated March 13, 1846, drawn upon and accepted by the defendant Stansbury, which bill was claimed to have been given for the tobacco.

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. The 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 set aside the judgment." The court sustained the objection, and refused to permit this record to go in 350] evidence; to which ruling of the court the *plaintiff excepted. The jury 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

Reynolds v. Stansbury and Burch.

question was presented precisely as it is in this case. Justice Story, in delivering the opinion of the court in that case, says: "The defendant offered in evidence a record of a former suit between the same parties, in which judgment was rendered for the defendant, supported by parol proof that the former suit was for the same cause of action as the present suit. The plaintiffs denied its admissibility under the general issue, and we are all of opinion that the objection can not be supported."

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."

The court in

That

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. that case decide that a judgment of a former recovery can not be given in evidence under the general issue, without notice. 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 admitting the 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 show- [351 ing 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 nullity. 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

Reynolds v. Stansbury and Burch.

ercised, not merely at the term in which the judgment is rendered, but at a subsequent term. And the court, in that instance, sustained the action of the court in error, in setting aside a judgment entered at a previous term.

The case 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 he 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 352] 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 set 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