Wilder v. McDonald

9 Ohio Cir. Dec. 259

• Court: Hamilton Circuit Court
• Decided: July 1, 1899
• Status: Published

Opinion

Smith, J.

We see no reason to change the opinion heretofore expressed on the motion to strike from the files the petition in error in this case on the ground that it was not filed within six months from the day of the rendition and entry of the judgment which is sought to be reversed.

On June 26, 1897, the case was tried to the court, and a judgment entered dismissing the petition at the costs of the plaintiffs, to which they excepted. On June 29th a motion to set aside the judgment and for a new trial was filed. At a subsequent term, viz.: on October 13th, the court entered an order, making a separate finding of facts and its conclusions of law, and overruled the motion for a new trial, but no entry was ever made by the court in any other respect modifying or vacating the original judgment of June 26th, nor was there any other judgment entered on October 13th other than that overruling the motion foi a new trial.

The petition in error was not filed until April 13, 1898, which was much more than six months from the entry of the judgment in the case, viz. : June 26th but was within six months from the overruling of the motion for a new trial and the entry of the finding of facts.

This question, we think, is conclusively settled by the decisions of the Supreme Court in Young v. Shellenberger, 53 O. S., 291-9, and Daily v. Popple, 58 O. S., 395. If the court had in any way, by the entry of October 13th, modified or set aside the judgment entered on June 26th, there might have been some ground to believe that the petition in error might be filed within six months from that date; but this was not done, and if the plaintiff below allowed the six months from June 26th, to run without filing his petition in error, he can not do so afterwards.