
    Common Pleas Court of Hamilton County.
    Harry Vane v. Mary Linfert.
    Decided July 21, 1933.
    
      Kenneth P. Mooter, for plaintiff in error.
    
      Fricke & Spiegel, for defendant in error.
   Bell, J.

This is a proceeding in error from the Municipal Court of the city of Cincinnati. The transcript of the docket and journal entry shows that on September 2, 1932, the case was called, the parties were in court and trial was had, and on the same day the following judgment entry was recorded :

“Judgment for plaintiff for $5.00. The court further finds for the defendant on her cross-petition in the sum of $53.50, wherefore defendant recover from plaintiff the sum of $48..50; to which the plaintiff excepts.”

On September 3rd a motion for new trial was filed; on September 10th the motion was overruled and judgment entered in favor of the defendant on her cross-petition for $53.50, and plaintiff on petition for $5.00.

On September 19th, without further hearing, the following entry was made:

“Upon application of counsel for the plaintiff and by leave of court, first had, the judgment entry heretofore filed herein is hereby withdrawn and the following judgment substituted therefor. On consideration of the matter, the parties being in court, the court finds that the plaintiff has failed to maintain the issues on his part to be maintained except insofar as the payment for a permit in the sum of five ($5.00) dollars, and the defendant has prevailed on her cross-petition in the sum of fifty-three and 50/100 ($53.50) dollars less the balance due on the contract price, to-wit: forty-six ($46.00) dollars.
“It is therefore ordered by the court that the plaintiff recover from the defendant the sum of five ($5.00) dollars and that the defendant recover from the plaintiff the sum of seven and 50/100 ($7.50) dollars, leaving a judgment in favor of the defendant in the sum of two and 50/100 dollars and her costs herein expended,
“To all of which the plaintiff, by his counsel, excepts.”

The parties are in the same position in this court as in the court below, the plaintiff below being plaintiff in error and the defendant below being defendant in error.

The entering of these two judgments after the overruling of the motion for a new trial, without the hearing of further testimony, was error and would require a reversal of this cause, except for the fact that this change in the judgment was made upon the application of the plaintiff and was to the benefit of the plaintiff. Therefore the plaintiff cannot here complain and secure a reversal of this judgment based upon erroneous action by the court made upon his request and by which he was benefited.

For this reason the judgment is affirmed.  