State ex rel. Merion v. Van Sickle

OPINION

BY THE COURT:

Submitted on motion of plaintiff-appellant to certify the record to the Supreme Court of Ohio on the ground that the judgment of this Court is in conflict with the judgment pronounced upon the same question by the Court of Appeals of the First District, Hamilton County, in the cases of The Ohio Associates Company v Pritz and Pritz v The Ohio Associates Company, 48 Oh Ap 567.

We perceive no conflict in the judgment of the cited case and our order in the instant case. The second syllabus of the cited case is in complete accord with our judgment. The cited case was decided under the old appellate procedure act. No question was presented as to which of two motions for new trial would start the time to run within which the bill of exceptions should be filed. Here we have to make determination as to which of two motions for new trial was duly filed and under the Lowry case we held that the first one should be so classified and that the bill of exceptions not having been filed within statutory time thereafter, it was not filed within time.

We understand that the determination of the question whether or not a motion to certify should be allowed is judicial and though we are hopeful that the Supreme Court will admit this case on motion to certify we cannot declare that there is a conflict in the respective judgments. It will be denied.

HORNBECK and GEIGER, JJ., concur. BARNES, P. J., not participating.