
    GALLOWAY et v BAEHR
    Ohio Appeals, 1st Dist, Hamilton Co
    No. 3886.
    Decided Nov 23, 1931
    Robert Black and John M. McCaslin, Cincinnati, for plaintiffs.
    W. H. Fox, Cincinnati, for defeiidant.
   ROSS, PJ.

At this time the witness had been indicted, and it is admitted pleaded guilty and been sentenced. A supplemental petition filed herein sets forth these facts.

Under the facts alleged and admitted, the plaintiffs are entitled to a vacation of the judgment.

However, a motion has been filed to dismiss the appeal on the ground that the proceeding to enjoin execution upon the judgment being wholly statutory, and not based upon any proceeding known to equity is not appealable.

At the hearing upon the merits, action by the court having been delayed upon the motion to dismiss the appeal, no evidence was introduced, but it was. admitted that the question now before the court is wholly moot, as a subsequent and independent proceeding to vacate the original judgment obtained through perjured testimony has terminated in stíspending the judgment pending a retrial.

Under such circumstances, the motion to dismiss the appeal must be granted.

The court regrets, however, that it is unable to find authority for considering the present proceeding as directed to its own judgment of affirmance, which was innocently effective in sustaining a judgment tainted with material perjury.

HAMILTON and CUSHING, JJ, concur.  