Davis v. Teachnor

OPINION

BY THE COURT:

Submitted on the following motion:

“Now comes Dr. Wells H. Teachnor, defendant-appellee, and moves the court to dismiss the appeal of Elizabeth Davis, plaintiff-appellant, from the order of the Court of Common Pleas of Franklin county entered January 16, 1943, vacating a default judgment theretofore rendered by said Court of Common Pleas in favor of plaintiff-appellant and against defendant-appellee, for the reason that the motion to vacate was filed within three days from the entry of default judgment and therefore is to be deemed and considered as a motion for a new trial and the entry of said Court of Common Pleas filed January 16, 1943, is deemed and considered to be an order sustaining a motion for new trial and granting a new trial.”

The motion must be overruled.

If it be granted for the purpose of the motion that the action of the trial judge invoked by the motion of defendant-appellee to vacate a default judgment was the sustaining of a motion for new-trial, an appeal may lie from such action. Webster v The Pullman Co., 51 Oh Ap 131. The basis of the appeal is the same, namely, abuse of discretion in the action of the trial judge. Webster v Pullman Co., supra; Miller v Smith, 57 Oh Ap 127.

Much attention is devoted in the briefs of the parties to a discussion whether or not the order in this case was the sustaining of a motion for a new trial or the vacation of a judgment. Recourse to the bill of exceptions discloses that counsel for appellant did not in the trial court urge that his motion for new trial be considered or passed upon. In any event, the controversy is immaterial on the motion, as a question of law is raised upon the bill which should appropriately be considered on its merits.

Motion overruled.

.BARNES, P.J., HORNBECK and GEIGER, JJ., concur.