
    COOK et, Etc v SHANOWER et
    Ohio Appeals, 5th Dist, Stark Co
    No 1472.
    Decided Oct 10, 1934
    Price Janson, Canton, for plaintiffs in error.
    C. B. McClintock, Canton, and H. W. Pet-zinger, Canton, for defendants in error.
   OPINION

By LEMERT, J.

The instant case, involving an action on the bond, came on foif hearing before the Court of Common Pleas and a jury, and at the end of the plaintiff’s testimony, a motion was made to direct a verdict in favor of the defendants, • on the grounds that there had been a former adjudication-, as shown by plaintiff’s own testimony, and that the same amounted to res adjudicata, and the court sustained said motion.

Upon an examination of the record of the proceedings had.in the.Common Pleas Court upon the hearing of this cause, we are of the opinion that -the plaintiffs in this action had their rights determined at the time of the hearing on the exceptions to the second partial account and on the motion for the removal of the executor. The question of the liability of the executor for the funds on deposit in- these two banks was before the court and the court rendered a written opinion deciding the matter and a journal entry was put on record'. If these plaintiffs were not content with the decision of the Probate Court, they had their right of appeal and error. They decided not to take that course but to try some other remedy.

It has been repeatedly held that the Probate Court is the court wherein matters relating to the settlement of estates are determined. Having decided to follow the former course, can it now be said that these plaintiffs have the right to pursue another course where the same facts are involved? This, we believe, should not be permitted. We are of the opinion that the matters involved in the instant case were litigated and adjudicated as hereinbefore stated, and that the Court of Common Pleas was right in directing a verdict in favor of the defendants.

It, therefore, follows that the finding and judgment of the Court of Common Pleas is hereby affirmed.

Exceptions may be noted.

SHERICK, PJ, and MONTGOMERY, . J, concur.  