
    No. 473
    SEIBERT v. SEIBERT
    No. 18631.
    Supreme Court of Ohio
    On motion to direct Champaign Appeals to certify record.
    Docketed June 24, 1924.
    2 Abs. 404
    465. ERROR — 1. In reversing and modifying judgment of Common Pleas.
    2. In ignoring 8032 GC.
    3. In violating rule 9 of Appeals Court.
    Attorneys — Benjamin E. Seibert," Urbana, for himself; McGrew & Laybourne, Springfield, and Deaton, Bodey & Bodey, Urbana, contra.
   Benjamin E. Seibert, as plaintiff, secured a divorce from the defendant and the custody of their four year old child was awarded to him every other week until September 1, 1925. He was ordered to pay to her $785.26 and additional support for the child. The cash payment was made to her, and thereafter she filed error petition in the Court of Appeals. Whereupon it modified the judgment and gave the custody of the child to her with the exception of a short time during the summer. He claims error for the following reasons:

1. That the Common Pleas Court judgment was not subject to error proceedings unless there was an abuse of discretion in rendering it.

2. As the plaintiff in error had not predicated error upon abuse of discretion, either in his motion to set aside the judgment and for a new trial, or in the petition in error, the Appeals Court had no jurisdiction to review, hear or determine the same.

3. That the payment by the terms of the judgment of the Common Pleas was made a condition precedent to the custody of the child, and that the failure to return the -same estopped the defendant from prosecuting error in the case.

4. That the Court of Appeals totally ignored 8032 GC. which provides that the parent's shall be on an equality as to the care, custody and control of the offspring under ten years of age.

5. That the defendant did not, withtn five days, prepare and submit to the plaintiff a journal entry as required by rule 9 relating to journal entries of the Appeals Court.  