Greelish v. Cincinnati Traction Co.

By the Court.

This was an action for damages instituted in the Superior Court of Cincinnati, in which the plaintiff, now plaintiff in error, recovered a verdict. Defendant filed a motion for a new trial, and plaintiff filed a motion to strike the motion for a new trial from the files, on the ground that it was filed after the term. While these motions were pending, defendant filed a motion to correct the appearance docket so as to show that the motion for a new trial was filed January 1, 1921, instead of January 3, 1921. This motion was granted, and the record was corrected to conform to the date of filing stamped on said motion, which was January 1, 1921. The court then overruled plaintiff’s motion to strike the motion for new trial from the files, and granted defendant’s motion for a new trial.

Plaintiff in error now claims he is entitled to the judgment which the trial court should have entered, and that the court erred in granting the motion for a new trial. To this petition in error defendant in error has filed a motion to dismiss.

■ If no motion for a new trial is filed, or if it 'is not filed within the statutory period, then the entering of a judgment upon the verdict is a purely ministerial act. In the instant ease if the motion for a new trial was not filed in time, er within the term, plaintiff could have taken proceedings to compel the entering of the judgment. That matter, however, is not before this court.

The granting or overruling of a motion for a new trial is within the sound discretion of the Court and is not reviewable; much less so would be the ruling on the motion to strike said motion. Concord v. Runnels, 23 Ohio St., 601; Young v. Shallenberger, 53 Ohio St., 291, and Neuzel v. Village of College Hill, 81 Ohio St., 571.

' t There does not appear to be any matter properly before this court for review. The motion to dismiss the petition in error will be granted.

Motion to dismiss allowed.

Hamilton, P. J., Cushing and Buchwalter, JJ., concur.