Clickenger v. Patterson

22 Ohio Law. Abs. 211

Opinions

OPINION

By THE COURT

We are now asked to reinstate the above entitled cause heretofore dismissed for failure to file brief within the time prescribed by Rule VUI. This in effect is a second application for ' rehearing. The claim is now made that this court had before it at the time of such dismissal a brief in the companion. case of Roland Clickenger v Patterson wherein was presented many of the grounds of error urged in the instant case.

We are not able to accept the position of counsel for the very apparent reason that the two cases were not consolidated and tried together in the court below but on the contrary were tried at different times before a different judge and thereby separate records were incorporated in separate bills of exception.

No attempt was made to have the brief filed in one case considered in the other either by direct statement or by reference. On the contrary, counsel for plaintiff in error was objecting to the two cases being tried together which was directly opposite to his present position.

We are also urged to exercise our inherent power to set aside the order of dismissal on what is claimed “in the interest of justice.” Many statements of facts are set out in the memoranda not incorporated in the affidavits presented at the time of the original hearing cm the application to dismiss. An examination of these affidavits will disclose that counsel are in direct conflict on the claimed facts. Had counsel desired a record, it should have been made up at the time of the hearing. After this period of time, we cannot be expected to remember in exact detail just what was or was not said in the oral presentation. At the time the original order of dismissal was made, we had a clear understanding of the pertinent facts. We find nothing-in the present application demanding a change from our original position. The application for reinstatement will be overruled.

BARNES, PJ, HORNBECK and BODEY, JJ, concur.