# McMillen v. Willard Garage, Inc. > Ohio Court of Appeals · May 8, 1968 · 14 Ohio App. 2d 112 URL: https://www.frixlaw.com/law-library/cases/3726922 ## Case - **Full name:** McMillen, Appellee, v. Willard Garage, Inc., Appellant - **Court:** Ohio Court of Appeals - **Decided:** May 8, 1968 - **Citations:** 14 Ohio App. 2d 112; 43 Ohio Op. 2d 273; 237 N.E.2d 155; 1968 Ohio App. LEXIS 387 - **Precedential status:** Published - **Opinion:** Concurrence by Brown - **Judges:** Guernsey, Cole, Brown - **Cited by:** 2 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3726922 ## Opinion text Brown, J., concurring. The following are additional reasons for affirming the final order of the trial court in overruling the defendant’s motion filed within term to vacate the judgment by confession. In hearing and determining a motion within term, or a petition after term, to vacate or modify a judgment rendered on a promissory note containing a confession-of-judgment clause, the trial court is confronted with a two-pronged inquiry, where the motion or petition for vacation *117 alleges as grounds for vacation facts which call for the application of Subdivision (I) of Section 2325.01, Revised Code, which provides: “The Court of Common Pleas or the Court of Appeals may vacate or modify its own final order, judgment, or decree after the term at which it was made: “ (I) For taking judgments upon warrants of attorney for more than was due the plaintiff, when the defendant was not summoned or otherwise legally notified of the time and place of taking such judgment.” In determining the foregoing proceeding to vacate and set aside the judgment by confession, the trial court’s function is that it must first try and decide upon the foregoing grounds to vacate the judgment by confession. Section 2325.06, Revised Code. Livingstone v. Rebman, 169 Ohio St. 109 , paragraph one of the syllabus. This determination might, in some cases, involve the same evidence which is required to prove a tendered defense. Livingstone v. Rebman, supra, paragraph four of the syllabus. Secondly, after the trial court decides that a valid grounds for vacation or modification of the cognovit judgment exists, the trial court next shall determine whether a tendered defense would, if true, have constituted an effective or valid defense in the original proceeding seeking judgment by confession. If the trial court first decides that there is a valid ground to vacate or modify a judgment by confession and then further decides that the tendered defense would, if true, have constituted an effective and valid defense in the original proceeding, it is the duty of the trial court to suspend judgment pending a trial on the merits of the defense. Livingstone v. Rebman, supra, paragraph three of the syllabus; Bulkley v. Greene, 98 Ohio St. 55 , paragraph one of the syllabus; Canal Winchester Bank v. Exline, 61 Ohio App. 253 , paragraph two of the syllabus. In the instant case the defendant filed (or tendered) in support of his motion to vacate judgment an answer which contained only a general denial, and no affirmative defense, plus a counterclaim setting forth three separate *118 causes of action concerning transactions totally unrelated to, and not germane to, the execution of and consideration for the cognovit note upon which judgment was rendered. Neither the foregoing answer nor the foregoing counterclaim is legally sufficient to constitute a basis or predicate for vacating or suspending the judgment by confession. An answer tendered by a defendant seeking to vacate a judgment, which contains a mere general denial, is not sufficient for the prerequisite to an adjudication of a valid defense in an action to vacate a judgment. Section 2325.07, Revised Code; Thompson v. Lowman, 108 Ohio App. 453 ; Canal Winchester Bank v. Exline, 61 Ohio App. 253 , paragraph three of the syllabus; Lott v. Owyang, 55 Ohio Law Abs. 525 ; Davis v. Teachnor, 41 Ohio Law Abs. 199 ; 32 Ohio Jurisprudence 2d 308, 320, Sections 619 and 638. Likewise, a counterclaim is not a defense to the original action within the purview of the statute authorizing vacation of a judgment by confession. Bulkley v. Greene, 98 Ohio St. 55 , paragraph three of the syllabus, and page 60 thereof; Central Natl. Bank v. Standard L. & F. Co., 5 Ohio App. 2d 101 ; 32 Ohio Jurisprudence 2d 321, Section 638. These cases concerning a counterclaim applied to petitions to vacate judgments by confession after term at which rendered. Therefore, there should be an evaluation of the case of Ames Co. v. Busick, 37 Ohio Law Abs. 403 (Court of Appeals, Franklin County, 1942), which holds that a judgment by confession on a cognovit note may loe vacated during term under the inherent power of the trial court to permit the filing of an answer and cross-petition which states no affirmative defense, but only a counterclaim. In support of this proposition the Court of Appeals, in Ames Co., supra, cites the earlier ease of Daugherty v. Wilson, 14 Ohio Law Abs. 655 . It should be noted that in Ames Co., supra, at page 406 in the opinion, the Court of Appeals discussed with approval and distinguished the case of Canal Winchester Bank v. Exline, 61 Ohio App. 253 (see paragraph two of the syllabus), where the trial court refused to vacate *119 a judgment during term, the tendered answer containing only a general denial, and at pages 258 and 259 in Canal Winchester Bank, supra, the court held: “If any of the grounds set forth in Section 11631, General Code, are assigned as a reason for the action sought, then it is necessary, first, that the court find that the ground set forth in the motion is well made and further that the provision of Section 11637, General Code, has been met. With the motion an answer should be tendered for filing. Section 11637, General Code, says that a judgment shall not be vacated on motion or petition until it is adjudged that there is a valid defense to the action in which the judgment was rendered; that this adjudication is requisite to the suspension of a judgment has been held many times in Ohio. Follett v. Alexander, 58 Ohio St. 202 , 50 N. E. 720 ; Lee v. Benedict, 82 Ohio St. 302 , 92 N. E. 492 ; Watson v. Paine, 25 Ohio St. 340 . This section relates to procedure to open up judgments during as well as after term as is manifest by the use of ‘motion or petition,’ a motion being the proper form during term, and petition after term.” (Emphasis added.) The reasoning and conclusions reached in the case of Canal Winchester Bank, supra, are sound. The standards established in that case and in the other cases cited require a conclusion that, in the case at bar, the answer and counterclaim tendered by the defendant are legally insufficient to require vacation of the judgment by confession. The trial court was correct in denying the motion to vacate the judgment. Brown, J., of the Sixth Appellate District, sitting by designation in the Third Appellate District. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3726922. Public record. Not legal advice.