Marlow v. McSweeney
Marlow v. McSweeney
Opinion of the Court
OPINION
This is an action seeking to vacate a default judgment taken March 12, 1937, which judgment had become dormant. A motion for revivor was filed September 29, 1953, execution issued Oct. 2, 1953 and the petition to vacate the judgment for want of jurisdiction was filed Oct. 20, 1953.
The evidence on the trial of the petition to vacate is uneontradicted. that the precipe for service of summons upon defendant directed the
The only evidence before the court on the motion to vacate the default judgment for lack of jurisdiction was that presented by the defendant and his witnesses in which he categorically denied ever having received the summons or having any knowledge whatever that he was the defendant in the action.
The physical circumstances which are uncontradicted, together with the defendant’s sworn testimony, presented sufficient evidence upon which the court would be justified in vacating the judgment and setting the case down for trial on its merits. We are supported in this conclusion by the decision of this court in the case of Ruckert v. Matil Realty Co., 35 Abs 324, 40 N. E. 2d, 688; Bowers on Process and Service, parag. 259; Kingsborough v. Tousley, 56 Oh St 450; Hayes v. Kentucky Bank, 125 Oh St 359, and Lenz v. Frank, Treas., 152 Oh St 153.
Judgment affirmed. Exc. Order see journal.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.