
    The National Home for Disabled Volunteer Soldiers v. Overholser.
    
      P-ower of common pleas court to set aside its judgment — May .do, so by consent of parties, when.
    
    T.he court of common pleas having by statute authority to set - aside its judgments at a subsequent term, such judgments; may be set aside by the consent of both parties without state-. ' ment of the grounds for such action.
    (Decided May 7, 1901.)
    Error to the Circuit Court of Montgomery county.
    Upon the trial of the action in the court of common pleas, in which Overholser was plaintiff and the National Home defendant, the jury returned a verdict in favor of the plaintiff on the 25th day of November, 1898. Judgment in favor of the plaintiff immediately followed the verdict. Within three days, as required by statute, the defendant there filed a motion for a new trial. This motion was not disposed of by the court until the 27th day of March, 1899. On the 25th day of March, 1899, as appears from the record, by consent of the parties plaintiff and defendant, the judgment which had been entered in the previous November, and at a former term of the court, was set aside, the order being expressly made by the consent of the parties. Thereupon on the 27th day of March, the court upon consideration of the motion for a new trial, overruled the same and rendered judgment in favor, of the plaintiff for the amount of the verdict, to which ruling the defendant excepted and took a bill of exceptions which was filed May 10, 1899. On the 5th of June, 1899, plaintiff in error here filed its petition in error in the circuit court for the reversal of the judgment of the court of common pleas. On the 13th day of June, 1899, as appears from the record of the circuit court, that court, finding that it was without jurisdiction to hear and determine the cause for the reason that the petition in error was not filed within four months after the rendition of the judgment, ordered that the petition in error be dismissed and to this order plaintiff in error excepted. To reverse that order of dismissal is the object of this petition in error.
    
      Patterson <& Murphy and McMahon & McMahon, for plaintiff in error,
    cited the following authorities: Lambert v. Mustard, 18 Ohio St., 419; Elliot v. Plattor, 43 Ohio St., 198; Benedict v. State, 44 Ohio St., 679; Jarrett, In re est. of, 42 Ohio St., 199; Secs. 5354 and 5357, Rev. Stat.; Reynolds v. Stansbury, 20 Ohio, 344; Huntington v. Finch, 3 Ohio St., 445.
    
      Young é Young, for defendant in error,
    cited the following, authorities: Thatcher v. Dickinson, 2 Circ. Dec., 82; 3 C. C. R., 144; Watson v. Paine, 25 Ohio St., 340; Wellman v. Wellman, 6 Circ. Dec., 61 (9 R., 72); Exposition Building & Loan Co. v. Spiegel, 4 Circ. Dec., 474 (12 R., 761); Botkin v. Pickaway Co., 1 Ohio, 375; McVickar v. Heirs of Ludlow, 2 Ohio, 246; Critchfield v. Porter, 3 Ohio, 518; Landon v. Reid, 10 Ohio, 202; Greene v. Dodge, 3 Ohio, 486; Huntington v. Finch, 3 Ohio St., 445; Commissioners v. Cambridge, 3 Circ. Dec., 669; 7 C. C. R., 72; Hettrick v. Wilson, 12 Ohio St., 136; Braden v. Hoffman, 46 Ohio St., 639; Frazier v. Williams, 24 Ohio St., 625; Ralston v. Wells, 49 Ohio St., 298; 1 Black on Judgments, Sec. 306; Bronson v. Schulten, 104 U. S., 410; Allen v. Wilson, 21 Fed. Rep., 881; Egan v. 
      
      Sengpiel, 46 Wis., 703; Donnell v. Hamilton, 77 Ala., 610; Little Rock v. Bullock, 6 Ark., 282; Anderson v. Thompson, 7 Lea., 259; Black on Judgments, supra, See. 306; Young v. Shallenberger, 53 Ohio St., 291; Wasson v. Heffner, 13 Ohio St., 573; Gilliland v. Sellers, Admr., 2 Ohio St., 223; Dayton & Western R. R. Co. v. Marshall, 11 Ohio St.,, 497; Note 2, Beach v. Botsford, 40 Am. Dec., 45.
   By the Court :

The circuit court acted upon its own motion, and apparently upon the impression that the court of common pleas oh March 25, 1899, was without jurisdiction to set aside the judgment which it had rendered in the 25th of November, 1898, although the parties consented thereto. That view of the subject is erroneous. It was not an agreement to confer upon the court of common pleas jurisdiction of a subject matter. That court is vested by statute with authority to set aside its judgments after the terms at which they are rendered for specified reasons, and when counsel consented that that jurisdiction should be exercised in this case, they did no more than to waive the allegation of a statutory ground for such action. That judgment having been set aside, the judgment of March 27, 1899, upon the overruling of the motion for a new trial, is the only final judgment of the court of common pleas in the case, and the petition in error having been filed within four months of the rendition of that judgment it was the duty of the circuit court to consider it.

The order of the circuit court dismissing the petition in error is reversed and the cause remanded to that court for further proceedings.  