Miller v. Simms

Ohio Superior Court, Cincinnati

Miller v. Simms

1 Cin. Sup. Ct. Rep. 485

DecidedOctober 15, 1871

StatusPublished

This text of 1 Cin. Sup. Ct. Rep. 485 (Miller v. Simms) is published on Counsel Stack Legal Research, covering Ohio Superior Court, Cincinnati primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Miller v. Simms, 1 Cin. Sup. Ct. Rep. 485 (Ohio Super. Ct. 1871).

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Opinion

Taft, J.

It appears from the papers in this case, which have been submitted without oral argument, that Simms had obtained a judgment against Miller, in Louisiana, in 1860-61, when it was dangerous -for some people to appear in the courts of that State to defend actions; when the ordinance of secession had been voted. Miller had not dared to make his defense, as he alleges, and the judgment was rendered against him. He set up his case in his answer in this court at Special Term, and the court rendered a judg[486]*486ment in his favor. Simms applied for a new trial on grounds stated, which seemed to the judge at Special Term sufficient to induce the opening of the judgment.

The judgment against Simms, therefore,was set aside; but the judge immediately dismissed his petition without prejudice;

The plaintiff in error is not content to let the plaintiff in the original suit escape, and he therefore complains that a new trial was granted, and that the plaintiff’s petition was dismissed. He prefers to hold him in this forum, chosen by the plaintiff himself.

We are not accustomed to reverse the order of a judge granting a new trial on a motion made at the term when the trial was had and within the rules of the court. The granting of a new trial is so far within the discretion of the judge, in such cases, that it is not ordinarily a subject for proceeding in error.

As to the permitting the plaintiff to go out of court without prejudice, there is no bill of exceptions showing the evidence which had been exhibited to the court, and we do not feel called upon to review the action of the judge in the case.

We have no evidence before us to enable us to determine whether the defendant, Miller, was entitled to an injunction against Simms, to prevent him from using his Louisiana judgment. The judge made him pay all the costs and let him go. ¥e have no means of saying that that was not right.

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Taft, J.

It appears from the papers in this case, which have been submitted without oral argument, that Simms had obtained a judgment against Miller, in Louisiana, in 1860-61, when it was dangerous -for some people to appear in the courts of that State to defend actions; when the ordinance of secession had been voted. Miller had not dared to make his defense, as he alleges, and the judgment was rendered against him. He set up his case in his answer in this court at Special Term, and the court rendered a judg[486]*486ment in his favor. Simms applied for a new trial on grounds stated, which seemed to the judge at Special Term sufficient to induce the opening of the judgment.

The judgment against Simms, therefore,was set aside; but the judge immediately dismissed his petition without prejudice;

The plaintiff in error is not content to let the plaintiff in the original suit escape, and he therefore complains that a new trial was granted, and that the plaintiff’s petition was dismissed. He prefers to hold him in this forum, chosen by the plaintiff himself.

We are not accustomed to reverse the order of a judge granting a new trial on a motion made at the term when the trial was had and within the rules of the court. The granting of a new trial is so far within the discretion of the judge, in such cases, that it is not ordinarily a subject for proceeding in error.

As to the permitting the plaintiff to go out of court without prejudice, there is no bill of exceptions showing the evidence which had been exhibited to the court, and we do not feel called upon to review the action of the judge in the case.

We have no evidence before us to enable us to determine whether the defendant, Miller, was entitled to an injunction against Simms, to prevent him from using his Louisiana judgment. The judge made him pay all the costs and let him go. ¥e have no means of saying that that was not right.

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Bluebook (online)

1 Cin. Sup. Ct. Rep. 485, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-simms-ohsuperctcinci-1871.