Dusha v. Binz

155 N.E. 256, 23 Ohio App. 285, 4 Ohio Law. Abs. 645, 1926 Ohio App. LEXIS 453

• Court: Ohio Court of Appeals
• Decided: June 1, 1926
• Docket: 1710
• Status: Published

Opinion

WILLIAMS, J.

Charles Binz brought an action in the Lucas Common Pleas against Ida Dusha seeking to quiet title to real estate and to have it partitioned. The property was ordered partitioned and upon distribution of the proceeds of the sale of the property, Binz’s attorneys were allowed a certain fee.

The journal entry allowing such fee was not submitted to opposing counsel nor to the judge making the docket entry; but was submitted to another judge who approved same and filed the entry in August 1922.

At a subsequent term Dusha filed a motion to modify the decree in so far as it related to attorney fees. About three and one-half years later the motion was overruled, Dusha prosecuted error to reverse this ruling and the Cmut of Appeals held:

1. A rule of the court required that nil journal entries in contested cases must before filing, have approval endorsed thereon by counsel of record or by the judge making the docket entry.

2. As there was no such approval, it was within the duty of the court to set aside the judgment upon motion filed after term upon the ground that there was an irregularity in obtaining said judgment, within provisions of 11631 GC.

Attorneys — L. P. Smith for Dusha; John P. Mantón and Harry Levy for Binz; all of Toledo.

3.Refusal of the court to grant the motion to modify its former order constituted prejudicial error; and the judgment is reversed with directions to vacate or modify that order in so far as relates to allowance of attorney fees, same to be determined upon its merits.

Judgment reversed.