
    MYERS CONTRACTING CORPORATION, Appellant, v. BOWERS, Tax Commr., Appellee. MYERS CONTRACTING CORPORATION, Appellant, v. BOWERS, Tax Commr., Appellee.
    
      Ohio Appeals, Tenth District, Franklin County.
    No. 5761.
    Decided March 11, 1958.
    Robert Dow Hamilton, Columbus, for appellant.
    William Saxbe, Atty. Geni., S. Noel Melvin, Asst. Atty. Geni., Columbus, for appellee.
   OPINION

By PETREE, PJ.

This cause is on for hearing on motion of appellant, Ralph Myers Contracting Corporation, for an order setting aside the entry approved on February 10, 1958, by this court remanding this cause to the Board of Tax Appeals.

Appellant filed a motion on December 2, 1957, in diminution of the record, which motion was sustained by an opinion rendered on January 28 1958; and entry pursuant to said opinion was entered February 10, 1958.

This court ’ has, therefore, granted the appellant the remedy it sought, and now it cannot defeat the ends of justice by blowing hot and cold in the same breath. Further reasons for this decision may be found Dy referring to the opinion heretofore rendered in this case on January 28, 1958.

The motion to set aside the entry of February 10, 1958, will be overruled, and those to whom orders were directed in said entry will govern themselves accordingly.

Motion overruled.

BRYANT and MILLER, JJ, concur.

OPINION

By BRYANT. J.

This matter comes on for consideration upon a motion to reduce the appeal on questions of law and fact to an appeal on questions of law only. Said motion to reduce was filed January 22, 1958. While the said motion to reduce was pending, this court in an opinion rendered on January 28, 1958 by Petree, PJ, concurred in by Miller, J, and the writer of this opinion, held that the testimony of one witness before the Tax Commissioner, Stanley J. Bowers, apparently by inadvertence, was not certified to the Board of Tax Appeals nor apparently considered by said Board and said decision of this court directed that “the entire case will be remanded to the Board of Tax Appeals for further proceedings as outlined in this opinion.”

The parties, by their counsel, submitted separate entries and the entry submitted by counsel for appellee was approved and entered upon the journal of the court on February 10, 1958. Said entry provides in part as follows:

“IT IS, THEREFORE. ORDERED, ADJUDGED, AND DECREED that the motion be, and the same hereby is, sustained, that Stanley J. Bowers, Tax Commissioner of Ohio, is ordered to certify to this Court the testimony of said O. H. Foster, and that upon such certification this cause be remanded to the Board of Tax Appeals for its consideration of the entire record before the Tax Commissioner including the evidence of O. H. Foster and any other evidence which said Board may deem proper upon such reconsideration pursuant to this judgment and as provided in $5717.02, supra R. C.”

In other words, when the order just above quoted is complied with, the case will no longer be in this court and it will become the duty of the Board of Tax Appeals to give further consideration to said case in accordance with the direction of the said entry.

The motion to reduce, which as we have pointed out was filed January 22, 1958, therefore, has become moot and no useful purpose will be served by considering it. Said motion will, therefore, be overruled.

PETREE, PJ, MILLER, J, concur.  