Cesa v. Cain , 4 Ohio Law. Abs. 566 ( 1926 )

SAYRE, J.

John Cain sued Domino Cesa in the Cuyahoga Common Pleas; and submitted the cause to the court upon the pleadings and evidence upon Cesa’s default of pleading and failure of appearance. The court found for Cain in the sum of $3500.

Later it was discovered that Cesa had been inadvertantly sued as Domino' Cesa, his true name being Carmino Cesa, and on Jan. 22, 1926 the court corrected the name and substituted the true name for Domino. On April 20th, the court overruled Cesa’s motion to vacate the entry substituting his true name for the mistaken one; thereupon Cesa, on May 8th, filed his petition in error in the Court of Appeals. Cain moved to dismiss the petition. The Court held:

1. Section 12270 GC. provides that no proceeding in error shall be filed unless commenced within 70 days after entry of the judgment or final order complained of.

2. Section 12258 GC. provides that “a final order is one affecting a substantial right in an action, where it determines the action and prevents judgment, or affecting a substantial right made in a special proceeding or upon a summary application in an action after judgment.”

Attorneys — Rothenberg, McMorris & Smith for Cesa; Payer, Winch, Minshall & Karch for Cain; all of Cleveland.

3. It is claimed by Cesa that the overruling of a motion to vacate is a final order.

4. The order of Jan. 22, 1925 substituting' Cesa’s correct name was an order affecting a substantial right upon a summary application in an action after judgment, and a final order.

5. This was the final order in the case and a party could not change the situation by making a motion to vacate it.

6. If the overruling of the motion to vacate could be a final order, then a subsequent motion to vacate could be and the party could extend the time for the running of the 70 day period by merely making such a motion.

Motion to dismiss'the petition is sustained.