
    SCHMIDT, ESTATE OF, In Re
    Ohio Appeals, 2nd Dist, Franklin Co
    No 3239.
    Decided March 27, 1941
    Willard C. Walter, Chillicothe, for defendants-appellees and for the motion.
    McFayden, Swisher & Warden, Columbus, for plaintiff-appellant, and contra the motion.
   OPINION

BY THE COURT:

* Submitted on motion of defendantsappellees to dismiss • the appeal of plaintiff-appellant as to the order of the Probate Court of Franklin County, •«-Ohio, of March 11, 1940, in refusing to set aside its judgment of February 24, 1940, for the reason, that said order of March 11, 1940, is not a final order within the interpretation of §§12223-2 and 12223-3 GC, and this Court does not have jurisdiction to entertain such appeal, and for a rehearing.

This motion comes after the parties had invoked and secured the decision of this Court on the merits of the appeal directed to the order of March J.1, 1940, and is most unusual. However, as it is based upon jurisdictional grounds, we would be required to sustain it if the claim set forth in the motion is well made. We are cited to Haines v Schroyer, 15 Abs 142, a decision by this Court which is not in point. We there held that a motion to set aside and vacate certain findings of the court could not take the place of and be considered the same as a motion for new trial and be the basis for review which could only be obtained by the filing of motion for new trial.

The instant case in our judgment is controlled by Cox v Cox, 104 Oh St 611, wherein the court had before it the order of the trial court overruling a motion to set aside its judgment dismissing a petition for divorce. The Appellate Court on review refused to consider the appeal for want of jurisdiction because the order sought to be appealed from was not a final judgment. The Supreme Court reversed upon the authority of Chandler & Taylor Cornpany v Southern Pacific Company, 104 Oh St 188.

The motion will be overruled as will the application for rehearing.

GEIGER, PJ., BARNES & HORNBECK, JJ., concur.  