Opinion
No. 41024
Decided June 19, 1968.
Judgment by default — Petition to vacate — Valid defense not established — Counterclaim not defense.
APPEAL from the Court of Appeals for Logan County.
On July 14, 1965, plaintiff filed a petition in the Court of Common Pleas, and service thereon was made upon defendant. On April 30, 1966, the last day of the January 1966 term of court, default judgment was granted plaintiff against defendant in the amount of the prayer of the petition, no answer having been filed by defendant. On June 24, 1966, defendant filed a petition to vacate the default judgment for irregularity in obtaining such judgment, alleging, inter alia, "that he has a good and valid cause of action as shown by his answer and cross-petition filed herewith." The answer so filed is a general denial.
At a hearing conducted on the petition to vacate, defendant offered no evidence in support of a defense to the original action. The trial court vacated the default judgment and gave defendant leave to plead to the original petition. On plaintiff's appeal, the Court of Appeals reversed and dismissed the petition to vacate judgment on the ground that defendant failed to establish any valid defense to the action.
Mr. William E. Shirk and Mr. James K. Robinson, for appellee.
Mr. John R. Beck, for appellant.
It is clear from a reading of the record that defendant failed to establish any valid defense to the action as required by Sections 2325.06 and 2325.07, Revised Code. Consequently the judgment may not be vacated. The existence of a counterclaim such as that asserted in the cross-petition is not a defense. Bulkley v. Green, 98 Ohio St. 55. In the light of the record, the judgment of the Court of Appeals is, therefore, affirmed.
Judgment affirmed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT and SCHNEIDER, JJ., concur.