
    Barnes, Recr., v. Collins.
    (Decided May 21, 1934.)
    
      Mr. Donald E. D&Muth, for plaintiff in error.
    
      Mr. August M. Streicher, for defendant in error.
   Lloyd, J.

On February 10, 1933, G-eorge Barnes, receiver, commenced an action in the Municipal Court of- Toledo to recover of Omer R. Collins $200, as rental of certain premises located in Toledo. At the trial thereof had in that court on July 5, 1933, the court finding in favor of Barnes rendered judgment accordingly. On August 31, 1933, the action was re-submitted, and the Municipal Court thereupon, on that date, dismissed the petition of Barnes and rendered a judgment in favor of Collins for the costs incurred. On September 25, and at the same term of court, the court vacated and set aside the entry of August 31, and thereafter, on the same day, made the following entry: “Submitted. Petition dismissed. Judgment for defendant and for costs.”

On this same day, September 25, 1933, an appeal bond was given by Barnes, with surety thereon, and was approved by the clerk of the Municipal Court on October 5, 1933. On October 25, the appeal bond, together with a transcript of the proceedings had in the Municipal Court, was filed in the Court ■ of Common Pleas, and on November 2 Barnes filed his petition in the latter court, stating therein his claimed cause of action against Collins. On November 25 Collins, by written motion, asked the court to strike the petition of Barnes from the files and to dismiss his appeal for the following reasons, to-wit:

“1. Final judgment was rendered August 31, 1933, in favor of defendant.

“2. Appeal bond as prescribed by statute was not filed within ten days after August 31st, date of the rendition of the judgment.

“3. On September 25, 1933, the court re-entered the entry of judgment dated August 31st, 1933.”

This motion was submitted to the court solely upon the record of the proceedings had in the Municipal Court, no other evidence having been offered in support thereof, and upon this record the Court of Common Pleas “ordered and adjudged that plaintiff’s (Barnes’) petition on appeal be stricken from the files and that plaintiff’s appeal be dismissed.” Barnes, by petition in error, seeks a reversal of this judgment.

It is contended by Collins that the judgment of August 31 was vacated for the express purpose of extending the time within which an appeal could be prosecuted to the Court of Common Pleas, an appeal from the judgment of August 31 not having been perfected, and that the vacation of that judgment was an abuse of discretion on the part of the Municipal Court. The record does not show the reason for the vacating and setting aside of the judgment, but does show that the questions in issue were again “submitted” to the court, and it will be presumed, in the absence of evidence to the contrary, that the court acted in good faith and that the action taken by it was warranted and justified. The situation as it now confronts us appears to be that Collins seeks to prevent an appeal from a judgment which he claims is valid and subsisting as to him, when, if there were any legal reason therefor, he might have prosecuted error to the Court of Common Pleas to reverse the order vacating the judgment first rendered in his favor.

The facts here presented are unlike the facts stated in the opinion cited to us, involving an appeal from a judgment, which when dismissed was followed by a second judgment from which a second appeal was attempted, but involve a single appeal from a judgment apparently valid.

The judgment of the Court of Common Pleas is therefore reversed, and the cause is remanded to that court for further proceedings according to law.

Judgment reversed and cause remanded.

Richards and Williams, JJ., concur.  