
    DEAN, Plaintiff-Appellee, v DEAN, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 3880.
    Decided January 14, 1946.
    Charles R. Doll, Columbus, for Plaintiff-Appellee.
    Lyman & Bruce, Columbus, for Defendant-Appellant.
   OPINION

By THE COURT:

Submitted on motion of appellee to dismiss the appeal for two reasons:

1. The cause is not appealable.

2. Failure of appellant to file a motion for a new trial within the statutory period of three days after the decision and judgment.

By reply brief the appellee has waived the first ground of the motion and relies upon the second.

The second branch of the motion is grounded upon the proposition that no motion for new trial was filed within three days after the decision and judgment. An examination- of the transcript of docket and journal entries discloses that the entry overruling the motion for new trial, although filed the same day as the decree, precedes it in order. This indicates that the motion had been predicated upon some notation or finding of the trial judge, although this does not appear in the record, but it is conceded by counsel for appellee that the motion was based upon a notation in the docket of the trial judge. We may, therefore, assume that the motion for a new trial was filed after the finding in favor of plaintiff-appellee but before the decree of divorce. This was the exact situation presented in In re Lowry, 140 Oh St 223, wherein it was held that the motion was not prematurely filed, and the practice was approved.

The motion to dismiss the appeal will be overruled as to both branches.

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