Mominger v. Mominger , 1923 Ohio Misc. LEXIS 2010 ( 1923 )

tOWE, J.

Epitomized Opinion

[This was an action in partition. After the decree partition of the real estate in question had been entered. h motion was filed by defendant to set it aside on the ground that the debts and claims against the real estate of the decedent had not been paid, and that it had not been proved that the personal property of the decedent was insufficient to pay the same. The court refused to hear any evidence on this motion. The record shows that the defendant had been duly served and that he had filed his election under the partition suit to take certain real estate. No objection or exception was moved in behalf of any parties, to the decree. Then the defendant filed the instant motion during the same term of court, but more than three days after the decree had been entered. Upon the court’s refusal to hear this motion, the defendant prosecuted error. In sustaining the judgment of the lower court, the Court of Appeals held:

1. As the record does not disclose but that the defendant acquiesced in the decree, and as it is not asserted that he was not present or that he was prevented from being present, this reviewing court must presume that he knew of the action of the court, and he should not be permitted to challenge the decree at this time.