Opinion
No. 38067
Decided April 1, 1964.
Judgments — Motion to vacate — Discretion of trial court — Appeal — Presumption of validity — Abuse of discretion not presumed.
APPEAL from the Court of Appeals for Vinton County.
In this action for the wrongful death of a 17-year-old girl-occupant of an automobile, Section 4515.02, Revised Code, the so-called guest statute, was interposed as a defense. The Court of Common Pleas of Vinton County, on the trial of the action in February 1962, found for plaintiff on such issue and further found that the defendant driver of the automobile was negligent as a matter of law, and directed the jury to return a special verdict for plaintiff and assess the damages. Pursuant to such direction, the jury awarded the plaintiff damages in the sum of $12,500, and judgment was rendered for plaintiff in such amount in an entry filed on April 3, 1962.
On April 12, 1962, a motion for a new trial was filed and was argued orally by opposing counsel on May 9, 1962. At that time, the trial judge intimated from the bench that the motion would be overruled, and that an opinion would be written on the matter.
Such an opinion was written and filed under date of June 12, 1962. Filed at the same time was an entry overruling the motion for a new trial.
On June 20, 1962, at the court's direction previously given, the clerk of courts of Vinton County sent a letter to one of counsel for defendant, residing nearby in an adjoining county, the gist of which was that the trial judge had left a journal entry in the clerk's office, together with his opinion, a copy of which was enclosed, and that, "some time when you are up, please stop in and sign the entry as being approved by you if it is. The motion for a new trial is overruled." (Emphasis supplied.)
No further action was taken by defendants until July 17, 1962, when they filed a motion to vacate the judgment of June 12, 1962. Later a hearing was had on such motion, and the court overruled the same under date of August 14, 1962. It is apparent that the trial court entertained the view that there was a patent lack of diligence on the part of defendants.
A timely appeal on questions of law was taken to the Court of Appeals from the order and judgment of the Court of Common Pleas overruling the motion to vacate and set aside the judgment entered in such court on June 12, 1962.
Upon consideration, the Court of Appeals "ordered, adjudged and decreed * * * that the motion of the appellee to dismiss this appeal is hereby overruled; and it is further ordered that the Court of Common Pleas of Vinton County, Ohio, sustain the motion of the appellants herein to vacate the judgment of said court made and entered on June 12, 1962, in which the motion of said appellants for a new trial was overruled by said court." Then follows the mandate "to carry this judgment into effect and for further proceedings according to law."
Allowance of a motion to require the Court of Appeals to certify the record brings the cause before this court for decision.
Messrs. Volkema, Wolske Bopeley, for appellant.
Mr. M.D. Slavens, Mr. Harry B. Reese and Mr. Roy J. Gillen, for appellees.
The determination as to whether the judgment of June 12, 1962, should be vacated and set aside was in the first instance a matter within the discretion of the trial court.
Near the close of its opinion, the Court of Appeals remarked:
"As we view the situation in the present case, there was a misunderstanding between the court and counsel for the defendants. The trial judge and counsel for the defendants were nonresidents of Vinton County * * *. Considering all of the circumstances, our conclusion is that the showing in the present case was sufficient to require the court to sustain defendants' motion to vacate the judgment overruling the motion for a new trial; that failure to do so was an abuse of discretion * * *."
It is well established that the law attaches to a judgment of a court of record of general jurisdiction, regular on its face, a presumption of validity, and every reasonable inference is to be indulged to support such judgment. And, in the absence of some affirmative showing of a recognizable character that the judgment is erroneous, such judgment will stand. 31 Ohio Jurisprudence (2d), 687 et seq., Section 237.
Moreover, "where an entry overruling a motion to vacate does not show that the court refused to hear evidence supporting the motion, and the record is silent as to why the court refused to set aside the judgment, a reviewing court cannot say, in view of such lack of evidence, that the court abused its discretion." 3 Ohio Jurisprudence (2d), 768, Section 793.
In the instant case, the Court of Appeals did not have before it a bill of exceptions, an agreed statement of facts or a finding of facts by the court below. No adequate basis was shown upon which the Court of Appeals could reach the conclusion that the lower court proceeded improperly in refusing to vacate the judgment of June 12, 1962. Abuse of discretion cannot be presumed; it must be shown by evidence. 3 Ohio Jurisprudence (2d), 320, 321, Section 413.
In short, in the present case the Court of Appeals rendered its judgment of reversal in the absence of adequate grounds to support such action. Consequently, the judgment of the Court of Appeals is reversed.
Judgment reversed.
TAFT, C.J., ZIMMERMAN, KERNS, O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.
KERNS, J., of the Second Appellate District, sitting by designation in the place and stead of MATTHIAS, J.