Opinion
No. 75-1129
Decided October 13, 1976.
Appropriation of property — Highway purposes — R.C. Chapter 163 — Default judgment modified — Court without jurisdiction, when — R.C. 163.08, construed.
APPEAL from the Court of Appeals for Erie County.
On April 29, 1970, under authority of R.C. Chapter 163, the Director of Highways filed a petition and a Declaration of Intention to appropriate property of defendants (landowners) for highway purposes, and deposited with the clerk of courts an amount determined to be the sum of the value of the property to be appropriated and the damages to the residue.
Defendants were served with a copy of the petition and of the Declaration of Intention on April 30.
On June 3, defendants filed their answer, beyond the time limitation contained in R.C. 163.08.
At the time of the appropriation proceedings herein, R.C. 163.08 provided that the landowner's answer be filed "on or before the third Saturday after the return day of the summons. * * *"
R.C. 2703.05, which fixed the return day, was repealed effective July 1, 1971. The answer date is now 28 days after service of summons. Civ. R. 12(A).
Subsequently, on June 19, 1970, a default judgment was entered in the Court of Common Pleas against defendants for the amount set forth in the Declaration of Intention.
Following the filing of various motions, including a motion to vacate the default judgment, the trial court, on June 10, 1975, found that "good cause exists for modifying the judgment of default entered in this court on June 19, 1970," and increased the compensation.
Compensation to the landowners was increased to an amount offered the landowners in a letter from a Division Deputy Director of Highways prior to the commencement of the action to appropriate.
Both the director and the landowners appealed to the Court of Appeals which affirmed, holding that "under the peculiar facts of this case, it was not an abuse of discretion for the trial court to modify the judgment * * *."
The cause is now before this court pursuant to the allowance of the director's motion and the landowners' cross-motion to certify the record.
Mr. William J. Brown, attorney general, Mr. Donald J. Guittar and Mr. Richard B. Igo, for appellant and cross-appellee.
Murray Murray Co., L.P.A., and Mr. Thomas J. Murray, Jr., for appellees and cross-appellants.
In the recent case of Akron v. Gay (1976), 47 Ohio St.2d 164, this court held that "[t]he restriction upon extension of the answer date contained in R.C. 163.08 is jurisdictional. * * *"
The Court of Common Pleas was, therefore, without jurisdiction to modify the default judgment entered against the landowners on June 19, 1970, following the failure of the landowners to file an answer within the time prescribed by law.
Accordingly, on authority of Akron v. Gay, supra, the judgment of the Court of Appeals is reversed and final judgment is entered for appellant Director of Highways.
Judgment reversed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.