
    No. 223
    QUARTORS v. LAMPING
    Cincinnati Superior Court
    No. 56115.
    Decided Dec. 31, 1924.
    1042. REVIVOR—Revivor after lapse of year from death of party held in discretion of court.
    480. EVIDENCE—Under 11495 G. C. when defendant dying after having testified at previous trial, his evidence is admissible at second trial and plaintiff has same right.
    667.—JUDGMENT—When the judgment for plaintiff at first trial is reversed and record at second trial is identical the lower court is compelled to follow the appellate court.
    Published only in Ohio Law Abstract
    Attorneys—Ben B. Nelson and J. E. Rep-poport for Quarters; Oscar W. Kuhn for Lamp-ing; all of Cincinnati.
   MARX, J.

Epitomized Opinion

Action to recover commission for sale of real estate resulting in finding of issues for plaintiff and upon error judgment was reversed and cause remanded for a new trial. Before the second trial the defendant died. The supplemental petition for revivor was not filed for more than a year after the death of the defendant. At the second trial the testimony of both the plaintiff and defendant and other witnesses given at the first trial was admitted in evidence. The plaintiff himself did not offer to testify in additioji to offering the testimony of the previous case. The court of appeals held: |

1. That it had discretion to order the action revived against the defendant’s estate even though more than a year had elapsed since his death.

2. 11495 G. C. The testimony given at the previous trial was admissible .at the second trial. The court in obiter suggests that in addition the plaintiff must have testified in his behalf.

3. If evidence offered in the second trial is identical with that of the first trial the judgment of the court of appeals establishes conclusively the law of this case.  