Toledo Paper Box Co. v. Jay Lane, Inc.

20 Ohio Law. Abs. 334, 1935 Ohio Misc. LEXIS 1065

• Court: Ohio Court of Appeals
• Decided: November 12, 1935
• Docket: No 4864
• Status: Published

Opinion

OPINION

By MATTHEWS, J.

An order overruling a motion to discharge an attachment is an order affecting a substantial right in a special proceeding from which error may be prosecuted. Farmers’ Bank & Trust Co. v Cooper Tire & Battery Co., 37 Oh Ap, 54 at 57; Price Hill Colliery Co. v Old Ben Coal Corp, 38 Oh Ap, 151 (9 Abs 308). Therefore, the defendant had a right to have the order of January 17th, 1933, refusing to discharge the attachment, reviewed by, this court on error, provided it filed its petition in error within the time not exceeding seventy days as provided by §12270, GC. This it- did not do. The order, thereupon became final and conclusive upon the parties.

More than two years after this order was made and therefore after many terms oi the court had passed, the defendant sought by filing a motion stating the same’ground to have the same question re-examined. The term at which the order had been made having expired, the Court of Common Pleas lost control of the order, and the time foi prosecuting error having expired the order could not be disturbed by the court that made it or by any other court.

The filing of a new motion to discharge the attachment on the same ground did not have the effect of reinvesting the court with authority to modify • the order. The order discharging said attachment having been erroneously made on the motion filed on March 11th, 1935, the plaintiff had the right to have this court review the action of the Common Pleas Court by filing his petition in error in this court within the time not exceeding thirty days therefrom as provided in §11865, GC. This it did.

For these reasons, the order discharging the attachment is reversed and the cause remanded for further proceedings according to law.

ROSS. PJ, and HAMILTON, J, concur.