Wyant v. Russell
| Decision Date | 26 December 1923 |
| Docket Number | No 17841,17841 |
| Citation | 109 Ohio St. 167,142 N.E. 144 |
| Parties | Wyant v. Russell |
| Court | Ohio Supreme Court |
Error Proceedings - Dismissal of petition in error - Abuse of discretion must appear from record - Seventy-day limitation not postponed, when - Motion for new trial overruled upon rehearing - Failure to vacate judgment.
1.Abuse of discretion will not be presumed, but must appear from the record.
2.The granting of a motion, after judgment, to vacate a former order of the court overruling a motion for a new trial, and an entry of a new order overruling the motion for a new trial, are not effective to postpone the date from which the statute limiting the time within which a proceeding in error may be commenced begins to run, where the judgment upon the verdict antedates such entry, and has not been vacated.
The facts are stated in the opinion.
Mr Claude Wyant, in propria persona. Messrs. Marshall & Fraser and Mr. Harold A. Kesler, for defendant in error.
The error here assigned is that the Court of Appeals erred in sustaining the motion of the defendant in error to dismiss the petition in error and in rendering judgment dismissing the petition in error.
The transcript of the docket and journal entries of the Court of Appeals discloses: September 14, 1922, plaintiff in error filed his petition in error, summons was issued, and service made; December 1, 1922, the cause dismissed for want of prosecution; Decemb0er 20, 1922, application for a rehearing denied; December 27, 1922," This cause being on November 22, 1922, called for trial, and the plaintiff failing to appear in person or by attorney, the action is hereby dismissed for want of prosecution;" December 20 1922," this cause came on for hearing on application for rehearing, and the court on due consideration denied said application. To which ruling exceptions are taken."
This meager record brings nothing here upon which we could base a conclusion that the Court of Appeals has abused its discretion in dismissing the petition in error.
An examination of the docket and journal entries of the court of common pleas and of the bill of exceptions allowed by that court, all of which are filed in this court, but do not appear to have been filed in the Court of Appeals, discloses that on May 29, 1922, judgment on the verdict of a jury was rendered; that on the 7th day of July 1922, an entry was made vacating the Order overruling the ...
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...trial judge abused his discretion in refusing to vacate the order. Such abuse of discretion must appear in the record. Wyant v. Russell, 109 Ohio St. 167, 142 N.E. 144; Wagner v. Long, 133 Ohio St. 41, 49, 11 N.E.2d In this case, the only thing which appears in the record on that question i......
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...trial judge abused his discretion in refusing to vacate the order. Such abuse of discretion must appear in the record. Wyant v. Russell, 109 Ohio St. 167, 142 N.E. 144; Wagner v. Long, 133 Ohio St. 41, 49, 11 N.E.2d 247.' , $tIn Moherman v. Nickels, supra, paragraph one of the syllabus 'A c......
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