Simon Waligora had insured his automobile with the Millers National Insurance Co. against loss by theft. On November 30, 1921, Waligora reported that his automobile had been stolen and in due time the Company paid the loss. Subsequently the adjuster discovered that the machine had not been stolen but had been taken with Waligora’s consent; and secured a release from him cancelling the claim for the loss under the policy. The adjuster, acting under the assumption that the draft for the loss had not been paid to the Cleveland Cadillac Co., the holder of a mortgage on the car, considered the matter settled and adjusted; but subsequently discovered the CaCdillac Co. had

Demand was made on Waligora for the re-been paid.

turn of the money which was refused and suit was brought in the Cleveland Municipal Court. On trial day Waligora failed to appear and judgment was rendered in favor of the Insurance Co. Two weeks later Waligora filed a petition to vacate the judgment on the ground that there was a valid defense and that he had not been notified of the date and assignment of the case. The Municipal Court vacated the judgment on that petition and the Company prosecuted error. The Court of Appeals held:

1. “A judgment may be vacated for unavoidable casualty or misfortune preventing the party from prosecuting or defending.” 11631 GC.

2. Therer was nothing in the record to show that there was such casualty or misfortune.

3. Negligence of the attorney in not notifying Waligora was not such unavoidable casualty or misfortune as would justify the court in vacating a defoult judgment.

Judgment of lower court reversed and rendered in favor of Insurance Co.