Propeller Ogontz v. Wick & Morgan

12 Ohio St. (N.S.) 333

• Court: Ohio Supreme Court
• Decided: December 15, 1861
• Status: Published

Opinion

By the Court.

Under the rulings of this court, in Creighton v. Harden, 10 Ohio St. Rep. 579, and Bentley v. Dorcas, 11 Ohio St. Rep. 398, following Gardner v. Goodyear, 1 Ohio Rep. 170, the appeal bond in this case was sufficient, and the appeal ought not to have been dismissed.

The appellant moved, at the same term, to reinstate the case on the docket, on the ground that the district court erred in dismissing the appeal. This was, in effect, a motion to vacate the order dismissing the appeal. This motion was continued to the next term and then overruled. It ought to have been sustained. Three years had . riot elapsed between the order overruling the motion to vacate the .order dismissing the appeal and the time of filing this petition in error, and the plaintiff in error is not, therefore, barred of its remedy.

The order of the district court overruling the motion to vacate the order dismissing this appeal is reversed; and, proceeding to make the order which the district court ought to have made, it is further ordered that the order of the district court dismissing the appeal in this case be vacated and set aside, and the case reinstated on the docket for trial.