Appeal vs. Set Aside Judgement: Difference between them?

Previous | Next
 rated by 0 users
Latest post 12-01-2009 1:15 PM by adjuster jack. 5 replies.
  • 11-02-2009 12:41 PM

    • Doug7447
      Consumer
    • Not Ranked
    • Joined on 05-04-2009
    • OH
    • Posts 4

    Appeal vs. Set Aside Judgement: Difference between them?

    This is a basic question.  If it matters, I live in Ohio.

    What's the difference between an Appeal and a Motion To Set Aside Judgement?  I was doing some research on this topic (Landlord Tenant Law) and found in Pinnacle Mgt. v. Smith, 2004 Ohio 6928, that while a default judgement was entered in favor of Pinnacle in Sept 2002, Robertson filed a Motion to set aside the judgement in February 2003.

    Without boring you with the rest of the details of the case I found, especially since you can Google it and find it online, is there a time limit to how long one can file an appeal vs a Motion to set aside judgement?  What is the difference between the two?  Is it easier to get one as opposed to the other granted?

  • 11-02-2009 3:54 PM In reply to

    Re: Appeal vs. Set Aside Judgement: Difference between them...

    An appeal is generally appropriate if the judge has heard both sides of the story and made a decision that one side doesn't agree with. There is usually a limited amount of time (10 to 30 days) within which to file a notice of appeal. The appeal trial or hearing is either a do-over in the same court, or it goes to a higher court where it gets more complicated.

    A motion to set aside is generally appropriate where there has been a default judgment against the defendant because the defendant didn't show up. The defendant would have to show good reason for not showing up, like maybe not knowing about the lawsuit due to improper process service. When the judgment is set aside, the plaintiff has to file a new lawsuit in the same court. There is generally a longer period of time allowed to file a motion to set aside the judgment because quite often with a default judgment the defendant doesn't become aware of it till some time later.

    Getting a judgment set aside is probably easier because judges prefer to rule on cases based on the merits of the case.

    Appeals are not so easy because if you lost the case with a set of facts you'll probably lose the appeal with the same set of facts.

    Would have made more sense if you'd referred back to your other post for background. 

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 11-02-2009 4:01 PM In reply to

    Re: Appeal vs. Set Aside Judgement: Difference between them...

    Based on your other post, I think you'd be better off filing to set aside the default judgment.

    Being sick is likely to be good enough reason to get the judgment set aside.

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 12-01-2009 12:41 PM In reply to

    • Doug7447
      Consumer
    • Not Ranked
    • Joined on 05-04-2009
    • OH
    • Posts 4

    Re: Appeal vs. Set Aside Judgement: Difference between them...

    The problem is finding an attorney that will file it; there isn't much money to be made defending tenants when the landlords have deeper pockets.  I suppose I could file it but you know it won't look nearly as professional. 

    I even filed an objection to magistrate's decision/motion within the 10-day window required in Ohio if one wants to object but I couldn't prove the primary argument:  the landlord cashed the January rent money order prior to the expiration of the 3-day notice and yet still filed for eviction.  It took a couple of weeks before I could get the copy of the money order that was cashed by the landlord.  At the time of the hearing, even if I had been there, all I could prove is a money order was cashed but I couldn't prove who it was made out to.  I knew who it was made out to then but I still would have had to prove it and I couldn't prove it at that time. 

  • 12-01-2009 1:08 PM In reply to

    • Drew
      Consumer
    • Top 10 Contributor
    • Joined on 03-30-2000
    • PA
    • Posts 49,510

    Re: Appeal vs. Set Aside Judgement: Difference between them...

    The requirements for a motion at the SC level are perhaps a bit more lax than matters in higher courts.

    Laymans suggestion:

    Were I in your shoes  I'd file a Motion to set aside inside of 10 days  on my own using  any cookbook I could find as to Ohio rules and formats. But I'd get it there inside 10 day limit.

    If I had a true severe illness that prevented my from attending I'd beg the courts forgivness for not being there and or providing the court and the other a timely notice of my illness and pray that the court hear the matter on its merits.  If you missed the time and didn't even call court clerk you really need to eat a pound of humble pie and hope it works.  I've seen guys call from miles away and  say they were stick in traffic and judge allwed a delay--but not to even call means a lot of humble pie!  And make your point nice anc lean,

    And without trying to argue the case I might list key merits that I had to present if given my opportunity . Let court know you are not seeking to be heard on merits with nothing to say!

    Hey, its probably a far better shot than your odds on a formal appeal  to next level up  which  I think is limited to matters of law--and if you failwed to get some matters of fact onto record youare sunk.



  • 12-01-2009 1:15 PM In reply to

    Re: Appeal vs. Set Aside Judgement: Difference between them...

    Doug7447:
    The problem is finding an attorney that will file it; there isn't much money to be made defending tenants when the landlords have deeper pockets. I suppose I could file it but you know it won't look nearly as professional.

    It ain't rocket science.

    I went through quite a few Ohio counties until I found the following preprinted Motion to Set Aside Default Judgment. You can modify it to put your local court info in it:

    http://www.courtclerk....

    And if you are wondering what to put in that big white space in the middle of the form, here are a couple of samples from other states that you can use as guides to flesh it out:

    http://www.docstoc.com...

    http://www.formsworkfl...

    And this one has all the legalese that would make a lawyer proud:

    http://www.uslegalform...

    Doug7447:
    At the time of the hearing, even if I had been there, all I could prove is a money order was cashed but I couldn't prove who it was made out to. I knew who it was made out to then but I still would have had to prove it and I couldn't prove it at that time.

    Had you gone to the hearing you could have asked for a continuance (postponement) to give you time to get the cashed money order. If the judge had denied you the continuance it would have just given you grounds for an appeal.

    At this point, though, I don't think you have anything to lose by filing a motion to set aside the judgment, professional looking or not.

    I see that Drew cut in ahead of me, but he does make a good suggestion about what to put in the big white space. 

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
Page 1 of 1 (6 items) | RSS

My Community

Community Membership New Users: Search Community