Opinion
No. 26736
Decided March 16, 1938.
Judgments — Vacating or modifying during term — Inherent power of Common Pleas Court — Unaffected by new Appellate Procedure Act — New trial granted after appeal perfected.
The inherent power of the Court of Common Pleas to control its own judgments and to correct, modify or vacate same during the term at which they were rendered has in no way been abrogated or modified by any provision in the new Appellate Procedure Act.
APPEAL from the Court of Appeals of Cuyahoga county.
This action originated in the Court of Common Pleas of Cuyahoga county where the plaintiff sought damages for injuries claimed to have resulted from the negligent acts of the defendant. Upon trial, a verdict was rendered in favor of the plaintiff. A motion for a new trial, duly filed, was overruled January 23, 1937, and notice of appeal was filed February 11, 1937. Application for a rehearing of the motion for a new trial was filed by the defendant and on the same day a transcript of the record was filed in the Court of Appeals. Subsequently that appeal was dismissed at appellant's cost.
On March 2, 1937, the entry of January 23 overruling the motion for new trial was vacated and a rehearing thereof granted, and on April 1, 1937, the motion for a new trial was granted "on the ground of the failure of one of the jurors to answer fully questions in voir dire examination as to previous accidents in family." The trial was had, and all subsequent orders in the Court of Common Pleas were entered during the same term of that court.
Appeal on questions of law was duly perfected in the Court of Appeals by the plaintiff and that court stated in its entry that "the judgment of the said Court of Common Pleas is affirmed." Thereafter upon motion the record was ordered certified to this court.
Messrs. Oviatt Oviatt, for appellant.
Messrs. Squire, Sanders Dempsey and Mr. Roy Green, for appellee.
The single question presented by the record in this case is whether the Court of Common Pleas had jurisdiction of the case when it directed a rehearing of the motion for a new trial, and thereafter vacated its former order in that respect and granted a new trial.
Concededly the trial and all orders subsequent thereto occurred at the same term of that court. The principle has long been established and consistently adhered to and applied that the Court of Common Pleas retains control over its own orders and judgments during the term, with power to vacate and modify, which is not affected by the incidents that a motion for a new trial has been heard and overruled and a bill of exceptions taken. In the case of Huber Mfg. Co. v. Sweny, 57 Ohio St. 169, 48 N.E. 879, the principle thus announced in previous decisions there cited was restated in the syllabus and applied, though the order vacating and setting aside such order overruling the motion by inadvertence had not been entered and such omission was permitted to be supplied by an order nunc pro tunc at the succeeding term.
This inherent power of such courts to control their own judgments and to correct, modify or vacate same during the term at which they were rendered has in no way been regulated or abridged by any statute. 23 Ohio Jurisprudence, 1216, Section 1121, and cases there cited. It has not been abrogated or modified by any provision in the new Appellate Procedure Act. The provisions of amended Section 12223-2, General Code (117 Ohio Laws, ___, effective August 23, 1937), are not involved in this case.
The Court of Common Pleas was therefore within its jurisdiction when it granted the motion for a new trial and there was no final order from which to appeal to the Court of Appeals. It follows that instead of an affirmance, an order of dismissal should have been entered. The judgment is therefore reversed and the cause remanded to that court with direction to dismiss the appeal.
Judgment reversed.
DAY, ZIMMERMAN, WILLIAMS, MYERS and GORMAN, JJ., concur.