
    FISHBACK, Plaintiff-Appellant, v. BALDASARRO et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4654.
    Decided September 17, 1951.
    Key, Butler & Harrison, Paul Thomas Key, of Counsel, Columbus, for plaintiff-appellant.
    W. B. Bartels, Edward F. Lynch, Columbus, for defendantsappellees.
   OPINION

By THE COURT.

Submitted on motion by the defendants-appellees seeking an order dismissing the appeal herein for the reason that the said appeal is not based upon final orders. The record reveals that the notice of appeal is directed to two orders of the trial court, one of which was entered on June 8, 1951, vacating and suspending the default judgment for $1600.00 entered by it on May 15, 1951, in favor of the plaintiff and against the defendants. The other order appealed from was dated Jupe 12, 1951, which permitted the refiling out of rule of a demurrer to the interrogatories attached to the petition.

Counsel for the appellees cite the case of Green v. Acacia Mutual Life Ins. Co., 156 Oh St 1, the fourth syllabus of which provides:

“An order granting a new trial upon motion made in accordance with §11578 GC, is not a final determination of the rights of the parties and does not constitute a judgment or final order, the General Assembly has no power or authority to provide for an appeal from such order, and §12223-2 GC, providing that ‘an order vacating or setting aside a judgment and ordering a new trial, is a final order,’ is in conflict with Section 6, Article IV of the Ohio Constitution.”

The appellants have no quarrel with the principle of law announced in tlie Green case, supra, but are contending that the order sought to be vacated there was not based upon an abuse of discretion but that the motion was made in accordance with §11578 GC. An examination of the factual situation supports the appellant in this contention. The orders made in the case at bar were made during the same term of court, and it is fundamental that a trial court- has control of its judgments and orders during the term provided that in so doing it does not abuse its discretion.

In 2 O. Jur. Pt. 1, Section 110, p. 222, it is said:

“Under the old practice in vogue before the enactment of the latest statutes, in determining whether rulings made on motions to set aside, vacate, or modify judgments were final orders, distinctions were made between orders sustaining such motions and orders overruling them. Moreover, as to orders sustaining such motions, a distinction had to be made between motions filed during the term at which the judgment was rendered and those filed during a subsequent term.

“An order of court sustaining a motion filed during the term a judgment was rendered to vacate it or to set it aside was not regarded as a final order unless the court was shown to have abused its discretion in sustaining the motion. And in some of the' authorities it was merely stated more broadly that such an order is not final, but there seemed to be little doubt that the order was reviewable where abuse of discretion could clearly be shown.”

Also, 2 O. Jur. p. 1109, Section 619, it is stated:

“The rule is firmly established in Ohio that the control of a reviewing court over the discretion of a lower court in vacating or modifying its judgments or orders during term time is limited to cases where an abuse of discretion is clearly shown; in this connection it has been pointed out that no language, however strong, will take away 'the right of review where there is shown an abuse of discretion.”

In the Green case, supra, the court seemed to recognize the exception wherein it said at page 9:

“By the same line of reasoning the trial court in the present case had control of the judgment on the verdict until it passed upon the motion for a new trial, and since the granting of a new trial was not erroneous, there being no abuse of discretion upon the part of the court, there is no final order, for the plaintiff has the right to a retrial of the ease in the same court and might well obtain a judgment against the defendant.” (Emphasis ours.)

Our Supreme Court again seemed to recognize the exception in the more recent case of Mele v. Mason, 156 Oh St 118.

The motion will, therefore, be overruled.

HORNBECK, PJ, WISEMAN and MILLER, JJ, concur.  