Hallen v. Campbell , 1923 Ohio Misc. LEXIS 1703 ( 1923 )

FERNEDING, J.

Epitomized Opinion

This was an action to contest a will, brought b Omi E. Hallen. The defendants, other than Camj bell, did not file answers nor did it appear.that th court ordered an issue to be made up. At the trk the will was set aside. Within three days a motio for a new trial was filed by E. M. Hallen and Henr Gumble, executor. This motion was sustained whereupon plaintiff prosecuted error. In sustaii ing the judgment of the lower court, the Court < Appeals held:

1. As the order sustaining the motion for a ne trial was not a final judgment, error cannot, 1 prosecuted.

2. As the granting of the motion to vacate wí discretionary with the trial court, a reviewing cou will not set the same aside unless there is an abui of discretion, and as the record discloses nothir showing such an abuse, the judgment of the low court cannot be disturbed.