
    WOLF v DISPATCH PRINTING CO.
    Ohio Appeals, 2nd Dist., Franklin County.
    No. 3417.
    Decided April 7, 1942.
    
      Harry Kohn, Columbus, Wilson <& Rector, Columbus, for plaintiffappellee.
    Kenneth B. Johnston, Columbus, for defendant-appellant.
   OPINION

BY THE COURT:

There is before the Court a request by counsel for plaintiff-appellee for judgment upon the third cause of action of plaintiff’s second amended petition, and more lately the defendant-appellant flies a motion for rehearing and treats the application of plaintiff as a motion for rehearing, joins with the plaintiff in that request and asks that oral argument be permitted upon the application.

We did not write the original opinion upon any misapprehension but with full knowledge of the fact that counsel, for some reason, which we did not understand, gave no attention whatever in their respective briefs to the issue drawn on the cause of action and prayer of the petition for a money judgment. Therefore we did not discuss it, but decided the questions which were argued. However, as we view the matter, there can be but one proper judgment in view of our finding upon the questions which we did decide and that in accord with the judgment of the lower court, namely, a judgment for the plaintiff of the amount due her from the defendant by the terms of the lease which we have held to be an instrument binding and enforceable upon the parties. If there was a question of the right of the plaintiff to this relief, assuming that our former determination is correct, we would readily accord to the parties opportunity to brief the question and, if necessary, to present it orally.

Although the application of defendant for rehearing is not proper upon the appeal and clearly beyond the time fixed by our rule, we will and do give consideration to the application and must overrule it. It is not our practice to grant oral hearings on application for rehearing and we see no reason for modifying our rule in the instant case.

We recognize that there is a certain contrariety of opinion in Ohio in the lower courts on the question which we discussed and decided in our original opinion, but in view of the decisions of our Court of last resort relating to the broad equitable powers of the court to reform leases which may be defective at law, and the terms of the statute, §12210 GC, we are. required to make the finding which we have heretofore indicated.

The cause was capably and fully presented by counsel for the respective parties and no new questions arise upon the application for rehearing. We have given full and careful consideration to all the matters presented and no good purpose would be accomplished in restating the basis for our former opinion.

The application for rehearing will, therefore, be denied and the finding and judgment entries may be prepared in accordance with our opinion.

BARNES & HORNBECK, JJ., concur.  