Columbus Discount & Loan Corp. v. Burton

Petree, P. J. This is on for hearing on a motion of the plaintiff-appellant to certify the record in the instant case to the Supreme Court of the State of Ohio for review and final determination for the reason that this court’s judgment in this case is in conflict with the judgment of the Cuyahoga County Court of Appeals, Eighth District, in the case of Tedrich Furniture Company v. Tisdale, Case Number 24410, reported 78 Ohio Law Abs., 330 (Ohio Bar, August 11, 1958). The instant case is not on all fours with the case of Tedrich v. Tisdale, supra, cited in the brief of plaintiff-appellant. In that case the Court of Appeals of Cuyahoga County held that it was an abuse of discretion under certain conditions not to hear evidence before overruling a motion for a new trial where the defendant presented an affidavit showing an adequate defense. Thus, the overruling of the motion constituted a final order. In the instant case, we held that it was not an abuse of discretion' for the trial court to vacate a judgment and grant a new trial during term where the answer is positively sworn to and not just on information and belief. The answer sets up fraud. The granting of a motion for a new trial during term is never a final order unless there is an abuse of discretion. The motion to certify this case as in conflict with the judgment of the Court of Appeals of Cuyahoga County in Tedrich Furniture Company v. Tisdale, 78 Ohio Law Abs., 330, is hereby overruled. Motion overruled. Bryant and Miller, JJ., concur.