Sullivan v. Cloud

24 N.E.2d 625, 62 Ohio App. 462, 30 Ohio Law. Abs. 266, 16 Ohio Op. 152, 1939 Ohio App. LEXIS 290

• Court: Ohio Court of Appeals
• Decided: November 13, 1939
• Docket: 5665
• Status: Published

Opinions

OPINION

By HAMILTON, J.

The two' appeals grow out of an action which originated in the court of common pleas, to construe the will of John E. Sullivan, deceased, and for a declaratory judgment as to the interests involved.

The case is here on a motion to dismiss the appeal, and on a motion to strike the bill of exceptions from the files.

To determine the motions, it is necessary to make a chronological statement of the proceedings as disclosed by the record.

It appears that Judge Alfred Mack, of the Court of Common Pleas, on May 19th, 1939, entered a decree construing the will of John E. Sullivan, and declaring the rights of legatees and distributees thereunder.

On May 31st, the defendants gave notice of appeal from the decree of May 18th.

The record next discloses, in the transcript, that on July 1st, a Judge of the Court Of Common Pleas, other than the judge who entered the decree of May 19th, entered a judgment,-setting aside Judge Mack’s decree of May 19th. Why the judgment of May 19th was set aside is not disclosed in terms by the record.

While it is true a trial court has control of its judgments during the term and may set aside a judgment entered at that term for good cause shown, and in a proper proceeding, and on notice to opposing counsel to that effect, and in the exercise of sound discretion, has the power so to do, there are several objections to the action of the court in setting aside this judgment of May 19th.

The common pleas court had no power to vacate the judgmént after the appeal to the Court of Appeals. The notice of appeal vests jurisdiction of the case in the Appellate Court. Moreover, no proper proceeding of any kind was taken by either party to have the judgment set aside. Further, the defendants by procuring the vacation of the judgment of May -19th, in effect, abandoned their appeal, and will be held to have done so.

There is in the record an affidavit to the effect that counsel, securing the setting aside of the judgment, called opposing counsel, and stated he desired the judgment set aside for the reason that he was out of time for filing his bill of exceptions, and desired additional' time for the filing of -the same. If this affidavit was in the record in a bill of exceptions the vacation of the judgment would be promptly reversed.

This court and other courts have held that it is not within the sound discretion of the court to set aside a judgment for the purpose of tolling the time for filing a bill of exceptions.

As above stated, the action of the trial court setting áside the judgment was subsequent to the filing of the notice of appeal to the judgment of May 19th on law and fact. The notice of appeal removed the entire case to the Court of Appeals, and vacated the judgment in the court below. The trial court, by the appeal, loses all power to do anything in the case. See 2 O. Jur., §§317, 318, 319, and 321; Taylor, etc. v Fitch, et, 12 Oh St 169, at 172; 3 Am. Juris. 192; 14 C. J. S. 1091.

It follows that the judgment" of July 1st, 1939, setting aside the judgment of May 19th was void and of no force or effect.

After the entry of July 1st, 1939„ a new hearing was had by Judge Mack. On July 7th; 1939, a new hearing was had by Judge Mack. On July 7th, 1939; the court entered a decree in words and terms of the judgment of May 19th, which, in effect, constituted but a reentry of the original judgment.

From the judgment of July 7th, there is no appeal.

The judgment of July 1st, setting aside the judgment of May 19th, being void, the proceedings and judgment of July 7th are void and of no effect. The appeal based upon the judgment of July 1st is dismissed; that judgment having been procured by appellant, and they may not prosecute an appeal from their own judgment.

There does not appear to be any bill of exceptions in the appeal from the judgment of May 19th, 1939. There is, therefore, nothing to strike and the motion' to strike the bill of exceptions will be stricken from the record.

Our finding is, that the action of the trial court, vacating the judgment of May 19th, 1939, is void and of no effect; that the appeal from that judgment was abandoned by appellant in procuring the vacation entry; and that the proceeding and judgment of July 1st is a nullity.

For the reasons above stated, the appeals, No. 5665 and No. 5700 are dismissed.

ROSS, J., concurs.