Preg v. Preg

FULL TEXT. MIDDLETON, PJ. In the Court of Common Pleas, the plaintiff filed an action under favor of Section 11631 of the General Code, to modify a certain judgment that had been rendered in the Court of Common Pleas at a prior term of said Court. The action was based upon the claim that the judgment in question was obtained by the fraud of the defendant. It appears from the record that subsequently the action was determined adversely to the claim of the plaintiff who thereupon, appealed the case to this Court. A motion has been filed to dismiss the. appeal upon the ground that the original action or proceeding is not appealable. We are of the opinion that this motion must be allowed on the authority of Taylor v. Fitch, 12 OS. 169, and Gifford, Admr. v. Ryan, 9, O. App. 419. In the case first cited it was held that a proceeding to vacate or modify a judgment rendered at a former term was a special proceeding and reviewable in error only. In the case of Gifford Admr. v. Ryan, Supra, the same doctrine was adhered to and it was there decided that an action under Section 11631, Supra, is not appealable. It follows that the appeal herein, must be and is dismissed. Mauck, J., and Cushing, J., concur.