74 N.E.2d 119

ADAMS, APPELLEE v. ADAMS, APPELLANT.

No. 3729Court of Appeals of Ohio.
Decided January 21, 1947.

Judgments — Dismissal without prejudice — Authority of court to reinstate at subsequent term — Consent of parties.

The Court of Common Pleas has authority to reinstate at a subsequent term an action dismissed without prejudice at a prior term, where the parties consent to the order of reinstatement, even though no ground for vacation of judgment after term appears.

APPEAL: Court of Appeals for Franklin county.

Mr. Marion T. Frederick, for appellee.

Mr. Leonard P. Henderson, for appellant.

BY THE COURT.

This is an appeal on questions of law from a judgment of the Common Pleas Court, Division of Domestic Relations, Franklin county.

Plaintiff, appellee herein, filed his petition for a divorce January 17, 1941, and personal service was made on defendant, appellant herein. No answer was filed and on October 17, 1941, the action was dismissed

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without prejudice to the bringing of a new action. Later the plaintiff filed a new action which was dismissed December 24, 1942.

On June 20, 1942, plaintiff filed a motion to reinstate the original action. Notice was served on the defendant of a hearing on the motion. The defendant failed to appear either in person or by attorney. The court withheld its ruling on the motion. The plaintiff, being in the armed services and expecting to be sent over seas, in which event he would not be able to be present at the hearing date on the second petition, pressed for a ruling on the motion. Later the plaintiff secured a furlough and returned to Columbus for the trial.

An entry sustaining the motion of plaintiff to reinstate the original action was presented to the defendant, which entry she approved in writing. Trial was had and a decree was granted to the plaintiff on December 24, 1942. On January 28, 1943, the defendant filed her motion to set aside, vacate and hold for naught the decree entered December 24, 1942. That motion was overruled and from such order this appeal is taken.

The defendant in her brief contends that the order of the court last made was contrary to law. There being no bill of exceptions the court cannot consider one question raised in the brief of defendant, to wit, whether defendant’s approval of the entry was obtained through misrepresentation. In the absence of a record showing the contrary, this court is required to adhere to the established rule that the trial court acted properly and everything was done regularly.

The only vital question raised is whether the trial court had jurisdiction to make the order reinstating the original action. If the court had jurisdiction, it follows that the trial, the granting of the decree and the

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subsequent order overruling the motion to set aside the decree were proper.

The provisions of the Code of Civil Procedure relative to revivor of actions have no application to the facts in this case. The Common Pleas Court is given statutory authority to set aside its judgments or orders after term. The grounds for vacating a judgment or order and the procedure to be followed are set forth in Section 11631 et seq., General Code. Conceding the point that one of the grounds for vacating a judgment or order after term as set out in the statute does not appear in the record, the court nevertheless had authority to vacate the dismissal order with the consent of parties.

In National Home for Disabled Volunteer Soldiers v. Overholser, 64 Ohio St. 517, 60 N.E. 628, the jurisdictional question was passed upon by our Supreme Court. The opinion of the court is concise and is quoted in full as follows:

“The Circuit Court acted upon its own motion, and apparently upon the impression that the Court of Common Pleas on March 25, 1899, was without jurisdiction to set aside the judgment which it had rendered on the 25th of November, 1898, although the parties consented thereto. That view of the subject is erroneous. It was not an agreement to confer upon the Court of Common Pleas jurisdiction of a subject matter. That court is vested by statute with authority to set aside its judgments after the terms at which they are rendered for specified reasons, and when counsel consented that that jurisdiction should be exercised in this case, they did no more than to waive the allegation of a statutory ground for such action. That judgment having been set aside, the judgment of March 27, 1899, upon the overruling of the motion for a new trial, is the only final judgment of the Court of Common Pleas in the

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case, and the petition in error having been filed within four months of the rendition of that judgment it was the duty of the Circuit Court to consider it.” (Italics ours.)

See, also, 23 Ohio Jurisprudence, 1181, Section 1070; 31 American Jurisprudence, 276, Section 730.

Applying that principle of law to the facts in this case, this court holds that the trial court had jurisdiction to vacate the order dismissing the action without prejudice. The action being reinstated, it was restored to the same status it had at the time of the dismissal. The trial court having jurisdiction proceeded to trial and issued a decree dated December 24, 1942. The decree in the original action and the entry dismissing the second action being entered on the same day, it is presumed the entries in the two cases were filed in the proper order, no showing being made to the contrary. In fact, we are unable to see how the filing of the second action could deprive the court of its jurisdiction to proceed in the original action, once the action was reinstated.

Accordingly, the order of the trial court overruling the motion to set aside and vacate the decree was not contrary to law.

There being no error in the record prejudicial to the defendant, the judgment of the trial court is affirmed.

Judgment affirmed.

HORNBECK, P.J., WISEMAN and MILLER, JJ., concur.

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