
    No. 719
    SCHWARTZ et al v. SIEGENTHALER
    No. 18606.
    Supreme Court
    Pending in Supreme Court on motion to certify;
    docketed May 23, 1924.
    2 Abs. 371;
    OA. op.
    2 Abs. 360;
    mo. cer. dis.
    2 Abs. 643.
    677. JUDGMENTS — Setting aside without evidence — Abuse of discretion in setting aside.
    Attorneys — J. B. Oviatt, Cleveland, for Waite and Lester.
   Siegenthaler filed an action in Cuyahoga Common Pleas for foreclosure of a first mortgage on certain taxicabs and a second mortgage lien on other taxicabs. One Schwartz and the Yellow Cab Co. were the' parties defendant. After a decree had been entered one Waite and Hester filed a motion to vacate the judgment. Attached to this motion was an affidavit in which they claim that they were interested parties in that the finding of the court in favor of Schwartz materially affected certain rights existing in their favor. (For statement of claimed facts in the case, see Appeals opinion, 2 Abs. 360.

In reviewing the judgment of the lower court, the Court of Appeals held that the act of thq court in vacating- the decree rendered without the hearing of evidence on the subject amounted to abuse of discretion, which would justify the reviewing court in setting aside the order to vacate rendered by the court below; and that the Common Pleas has full control of its own judgments, decrees and orders during the term at which they are made, and said court may vacate or modify the same subject to the limitation that it must be within the exercise of sound discretion, and not otherwise. A motion to certify was filed in the Supreme Court. The principal question for this court’s determination is:

_ Did the Court of Common Pleas abuse its discretionary power in vacating an order entered during the same term of court, where there is an affidavit in support of said motion, the pleadings and the statement of counsel?  