Huber v. Executors of Cherry

Ohio Supreme Court

Huber v. Executors of Cherry

17 Ohio St. (N.S.) 563

Ohio Supreme Court·Decided December 15, 1867·Published

Opinion

*By the Court.

We think the court did not err in this •¡refusal. A party can net have a second trial unless he enters his [518]*518notice of demand upon the journal. The provision in the 6th section of the act of 31st March, 1859 (S. & 0. 1159), for remanding causes for second trial, upon dismissal of the appeal, applies only to cases where a demand for second trial has been disallowed in the common pleas. The object was to relieve against the mistake of the court, and not against the mistake or willful act or omission of the party. Any other construction would put it in the power of a party vexatiously to delay the final adjudiction of the action.

Leave refused.

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*By the Court.

We think the court did not err in this •¡refusal. A party can net have a second trial unless he enters his [518]*518notice of demand upon the journal. The provision in the 6th section of the act of 31st March, 1859 (S. & 0. 1159), for remanding causes for second trial, upon dismissal of the appeal, applies only to cases where a demand for second trial has been disallowed in the common pleas. The object was to relieve against the mistake of the court, and not against the mistake or willful act or omission of the party. Any other construction would put it in the power of a party vexatiously to delay the final adjudiction of the action.

Leave refused.

Huber v. Executors of Cherry, 17 Ohio St. (N.S.) 563 (Ohio 1867).

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17 Ohio St. (N.S.) 563 (Huber v. Executors of Cherry) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.