
    HALLEN v. CAMPBELL et al
    Ohio Appeals, 2nd District, Franklin County
    No. 1005.
    Decided June 13, 1923
    166. ERROR.
    Order sustaining motion for mistrial, not bein final order, is not predicated for error — Order vacal ing judgment is not reversible unless discretion i clearly abused.
    Attorneys — Charles J. Pretzman, for Halle: Powell & Powell, for Campbell et al.
   FERNEDING, J.

Epitomized Opinion

This was an action to contest a will, brought b Omi E. Hallen. The defendants, other than Camj bell, did not file answers nor did it appear.that th court ordered an issue to be made up. At the trk the will was set aside. Within three days a motio for a new trial was filed by E. M. Hallen and Henr Gumble, executor. This motion was sustained whereupon plaintiff prosecuted error. In sustaii ing the judgment of the lower court, the Court < Appeals held:

1. As the order sustaining the motion for a ne trial was not a final judgment, error cannot, 1 prosecuted.

2. As the granting of the motion to vacate wí discretionary with the trial court, a reviewing cou will not set the same aside unless there is an abui of discretion, and as the record discloses nothir showing such an abuse, the judgment of the low court cannot be disturbed.  