
    SNYDER et v SILBERMAN et
    Ohio Appeals, 8th Dist, ■ Cuyahoga Co
    No 10667.
    Decided April 21, 1930
    H. A. Blachman, Cleveland, for Snyder, et.
    Persky & Loeb, Cleveland, for Silberman, et. ‘
    LEMERT, PJ and SHERICK, J (5th Dist) and ROBERTS, J (7th Dist) sitting
   LEMERT, PJ.

It is claimed on behalf of plaintiffs in error that they were not properly and legally served. The record discloses on page five of the bill of exceptions that Louis Snyder testified that he knew there was an action pending and that he had talked it over with his father and that he knew it was concerning commissions claimed by defendants in error.

Plaintiffs in error contended in the court below that they had no financial -interest in the original transaction. However, from the record it is disclosed that they had entered into ,an agreement to sell certain interest they had in their property and to convey title to the same.

There was, in the court below, a joint answer filed by all five defendants, and that, coupled with the fact that the parties were in court and had their day, the issue was tried and determined by the court, so that the issue before this court is not so much a question of law as it is a question of fact. As to the law that court may set aside a judgment and permit a defendant to have his day in court, there can be no doubt, but we find from the record that all the defendants were in court and their interests were ably protected at the trial, and the court below refused to vacate said judgment, so that the record showing that the plaintiffs in error were in court and the record failing to disclose that they filed any motion for new trial, within the time prescribed by law, it occurs to us that justice did prevail and that there was no need for error proceedings at that time. We therefore find and hold that the service of process in this case was good; that the defendants knew about this litigation; that they had their day in court; that the court having heard the evidence rendered a proper judgment.

We find and hold that the plaintiffs in error had a fair and impartial trial and hearing and that therefore we find that the judgment of the lower court should be and is hereby affirmed. Exceptions may be noted.

Sherick and Roberts, JJ. concur.  