Summary
noting that "[b]ecause defendants did not enter an appearance in the Municipal Court, after having been personally served with summons and a copy of the petition, they were not entitled to notice of the default proceedings. Civ.R. 55"
Summary of this case from Gupta v. EdgecombeOpinion
No. 73-512
Decided February 13, 1974.
Judgments — Default judgment — Defendant not entitled to notice of proceedings, when — Failure of defendant to appear — Appearance in one court, not "appearance" in another court, when — Motion to vacate.
APPEAL from the Court of Appeals for Franklin County.
On March 17, 1970, plaintiff instituted an action in the Franklin County Municipal Court against defendants to recover for property damage and medical and funeral expenses resulting from a motor vehicle collision in which plaintiff's two sons died.
On the same day, plaintiff's attorney filed a wrongful death action against the same defendants in the Franklin County Court of Common Pleas on behalf of plaintiff's wife, as administratrix of the estates of her two deceased sons.
Summonses were duly served on defendants in both actions.
Defendants appeared and defended the Common Pleas Court action.
On March 25, 1971, a default judgment was rendered against defendants in the Municipal Court action as a consequence of their failure to appear.
More than a year later, on July 27, 1972, defendants filed a motion to set aside the default judgment in the Municipal Court case. In a supporting affidavit, counsel for defendants states that defendants' insurer had requested the law firm representing defendants to defend the Common Pleas Court action, and had supplied counsel with a copy of the summons and petition in that action only, and that defendants' counsel learned of the existence of the Municipal Court case for the first time at a pre-trial conference in the Common Pleas Court action.
The Municipal Court overruled the motion to set aside the default judgment for the reason that relief is precluded where the moving party's "inexcusable neglect was the efficient cause of the judgment taken against them."
Upon appeal to the Court of Appeals, that court affirmed.
The cause is now before this court for review pursuant to the allowance of a motion to certify the record.
Messrs. Cline Hoskins and Mr. Daniel J. Igoe, for appellee.
Messrs. Knepper, White, Richards Miller, Mr. Richard L. Miller and Mr. Donald G. Paynter, for appellants.
It is defendants' contention that where, as here, a husband and wife, through the same attorney, file separate actions in two different courts against the same defendants, and the incident giving rise to both actions is identical, the defendants' appearance in one court constitutes an appearance in the other court.
Such is not the case. An appearance by a defendant in one court does not constitute an "appearance" in another, entirely different, court.
Because defendants did not enter an appearance in the Municipal Court, after having been personally served with summons and a copy of the petition, they were not entitled to notice of the default proceedings. Civ. R. 55(A).
Accordingly, the Municipal Court was not in error in refusing to vacate the default judgment more than one year after the judgment was taken. The judgment of the Court of Appeals, affirming the overruling of defendants' motion to set aside the default judgment, is affirmed.
Judgment affirmed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.