#### Sullivan, Appellee, *v.*Cloud et al., Appellants.

(Decided November 13, 1939.)

*Messrs. JELeither & H either,*for appellee.

*Messrs. Maxwell & Ramsey,*and *Mr. Wm. A. McKenzie,*for appellants.

*463Hamilton, J.

The two appeals grow out of an action which originated in the Court of Common Pleas, to construe the will of John E. Sullivan, deceased, and for a declaratory judgment as to the interests involved, The case is here on a motion to dismiss the appeal, and on a" motion to strike the bill of exceptions from the files.

To determine the motions, it is necessary to make a chronological statement of the proceedings as disclosed by the record.

It appears that Judge Alfred Mack, of the Court of Common Pleas, on May 19, 1939, entered a decree construing the will of John E. Sullivan, and declaring the rights of legatees and distributees thereunder.

On May 31, the defendants gave notice of appeal from the decree of May 19.

The record next discloses that on July 1, a judge of the Court of Common Pleas, other than the judge who entered the decree of May 19, entered a judgment, setting aside Judge Mack’s decree of May 19. Why the judgment of May 19 was set aside is not disclosed in terms by the record.

While it is true a trial court has control of its judgments during the term and may set aside a judgment entered at that term for good cause shown, and in a proper proceeding, and on notice to opposing counsel to that effect, and in the exercise of sound discretion, has the power to do so, there are several objections to the action of the court in setting aside this judgment of May 19.

The Common Pleas Court had no power to vacate the judgment after the appeal to the Court of Appeals. The notice of appeal vests jurisdiction of the case in the appellate court. Moreover, no proper proceeding of any kind was taken by either party to have the judgment set aside. Further, the defendants by procuring the vacation of the judgment of May 19, in *464effect, abandoned tbeir appeal, and will be held to have done so.

There is in the record an affidavit to the effect that counsel, securing the setting aside of the judgment, called opposing counsel, and stated he desired the judgment set aside for the reason that he was out of time for filing his bill of exceptions, and desired additional time for the filing of the same. If this affidavit was in the record in a bill of exceptions the vacation of the judgment would be promptly reversed.

This court and other courts have held that it is not within the sound discretion of the court to set aside a judgment for the purpose of tolling the time for filing a bill of exceptions.

As above stated, the action of the trial court setting aside the judgment was subsequent to the filing of the notice of appeal on law and.fact to the judgment of May 19. The notice of appeal removed the entire case to the Court of Appeals, and suspended the judgment of the court below. The trial court, by the appeal, loses all power to do anything in the case. See 2 Ohio Jurisprudence, 373, 375, 376, 377, Sections 317, 318, 319, and 321; *Taylor*v. *Fitch,*12 Ohio St., 169, 172; 3 American Jurisprudence 192, Section 528; 4 Corpus Juris Secundum, 1091, Section 607.

It follows that the judgment of July 1, 1939, setting aside the judgment of May 19 was void and of no force or effect.

After the entry of July 1, 1939, a new hearing was had by Judge Mack, on July 7,1939, in which the court entered a decree in words and terms of the judgment of May 19, which, in effect, constituted but a reentry of the original judgment.

From the judgment of July 7, there is no appeal.

The judgment of July 1, setting aside the judgment of May 19, being void, the proceedings and judgment of July 7 are void, and of no effect. The appeal, based *465upon the judgment of July 1 is dismissed, that judgment having been procured by appellants they may not prosecute an appeal from their own judgment.

There does not appear to be any bill of exceptions in the appeal from the judgment of May 19, 1939. There is, therefore, nothing to strike and the motion to strike the bill of exceptions will be stricken from the record.

Our finding is that the action of the trial court vacating the judgment of May 19,1939, is void and of no effect; that the appeal from that judgment was abandoned by appellants in procuring the vacation entry; and that the proceeding and judgment of July 1 is a nullity.

For the reasons above stated, the appeals are dismissed.

*Appeals dismissed.*

Ross, J., concurs.

Matthews, J.,

concurring in part and dissenting in part.

An examination of the transcript of the docket and journal entries and original papers discloses that the vacating entry of July 1 was at the same term at which the judgment of May 19 was entered. As I read the transcript it shows that the April term ended after July 1, not before that date. If that is not the correct construction, it certainly must be said that the record is indefinite upon the subject. In that situation, the presumption in favor of the validity and regularity of the proceeding in the trial court, which we are required to indulge, should 'cause us to conclude that this vacating entry was made when the court had power to make it. Furthermore, we know that by Section 1533, General Code, the Common Pleas Court has power to fix its terms, and, of course, it would *466take judicial notice of what it had done in that respect. Now if this court takes judicial notice of matters which the trial court notices without proof, as would seem to have been decided in *Orose*v. *Hodge Drive-It-Yourself Co., Inc.,*132 Ohio St., 607, 9 N. E. (2d), 671, 111 A. L. R., 954, we have a right to inform ourselves outside the record of the fact. If we do that, we learn that the July term did not begin until July 3.

We have then a case in which the court entered and set aside a judgment at the same term of court, or, at least, a case in which we cannot say from the record that both acts were not taken at the same term. That the judgments and orders of a court are *in fieri*— in process — in the breast of the court — and subject to change in the exercise of a sound judicial discretion during the term at which they are made, is one of the ancient rules of practice of the common law, which has been universally adopted by the state and federal courts of this nation. *Sam Savin, Inc.,*v. *Burdsal,*61 Ohio App., 539, 22 N. E. (2d), 914.

The court, therefore, had the power — the jurisdiction — to make the order of July 1, vacating the judgment of May 19. Whether there was error, justifying a reversal depends upon other considerations.

If the record affirmatively shows an abuse of discretion, that is, that the vacation was purely arbitrary, this court would be justified in reversing the vacating order and thereby restoring the operating effect of the judgment. But so long as the vacating entry is not itself vacated the judgment entry of May 19 cannot operate as a judgment.

In the majority opinion it is said that the notice of appeal on law and fact having been filed prior to July 1, the Common Pleas Court was divested of all jurisdiction and the entire case brought into this court for a trial *de novo.*If the petition states a cause of action *467in chancery, the appeal undoubtedly terminated the jurisdiction of the Common Pleas Court. The authorities cited in the majority opinion clearly establish that principle. However, if the cause of action is not in chancery, there can be no trial *de novo*in this court and the attempt to appeal on fact as well as law is ineffective as' an appeal on fact by the express terms of Section 12223-22, General Code. It — the appeal — is only on law under such circumstances. In other words, it is a review, which, under the practice prior to the adoption of the Appellate Procedure Act and in those jurisdictions which preserve the procedural distinctions between law and equity, would be denominated a proceeding in error. Such a proceeding does not transfer the entire case to the appellate court. The trial court still retains all the jurisdiction over the persons and subject-matter that the law conferred upon it, and this includes control over its judgments during the term. *City of Cincinnati*v. *Alcorn,*122 Ohio St., 294, 171 N. E., 330; *Martinka*v. *Cleveland Ry. Co.,*133 Ohio St., 359, 13 N. E. (2d), 910; *Miller*v. *Prout,*32 Idaho, 728, 187 P., 948; *Thompson*v. *Towle,*98 Conn., 738, 741, 120 A., 503; and *Lee*v. *Fowler,*263 Mass., 440, 161 N. E., 910. In the case of *Lee*v. *Fowler,*the court said at page 443:

“The suing out of the writ of error did not deprive the Superior Court of jurisdiction of the original case still pending before it. The writ of error is a common-law process and procedure under it is according to the common law. It is an independent action distinct and separate from the case, judgment in which is sought to be reversed. *Perkins*v. *Bangs,*206 Mass., 408, 412; *Hanzes*v. *Flavio,*234 Mass., 320, 327; *Commonwealth*v. *Marsino,*252 Mass., 224, 227; G. L. *c.*250 sec. 2.

“The judgment is not affected by the bringing of *468the writ of error unless there is also a *supersedeas,*but remains in full force unless and until impaired by some mandate of court entered upon the writ of error. . *Goodrich*v. *Wilson,*135 Mass., 31, 33; *Duart*v. *Simmons,*236 Mass., 225, 227; *O’Loughlin*v. *Overton,*68 Kans., 92.

‘ *‘*The writ of error does not bring into the Supreme Judicial Court the original case. That remains in the court in which it went to judgment.

“The action of the Superior Court in vacating thé judgment of July 5, 1927, was within its power.”

In 4 Corpus Juris Secundum, 1100, Section 616, it is stated as the black-letter epitome of the law that:

“After an appellate proceeding has been perfected the trial court usually cannot vacate or set aside the judgment or order, *except in the exercise of its power over its own judgments or orders during the term.”*

The same general rule is stated in 3 American Jurisprudence, 193, Section 529, and the same exception of the power of the court over its orders during the term is also stated.

Now what is the nature of the action alleged?

An examination of the petition discloses that the provisions of the will which the court is asked to construe do not purport to create a trust. As the touchstone by which to determine whether an action for a declaratory judgment to be appealable on law and fact, is whether the declaration desired relates to chancery or non-chancery subjects, it is clear that this action is not appealable on law and fact. *Whiting*v. *Bertram et al., Exrs.,*51 Ohio App., 40, 199 N. E., 367; *Dillon*v. *Gaker,*57 Ohio App., 90, 12 N. E. (2d), 150. Therefore, the appeal taken on May 31, 1939, is an appeal on law only, notwithstanding the notice recites that it is on law and fact. That being true, the Common Pleas Court had jurisdiction to vacate the judgment ap*469pealed from during the term, provided it was done in the exercise of a sound discretion. And we cannot assume that the vacation was arbitrary, without a bill of .exceptions setting forth all the evidence upon which the court acted or some other authoritative certification in the record of the basis of the court’s action. The affidavit of counsel found in the files does not have the verity which a certification of the trial court carries, and which is required for action by this court. The entry recites that it was made for good cause, and, in the absence of an authoritative record disproving it, we must presume that it existed:

As it appears of record that the judgment of May 19,1939, appealed from, has been vacated by the court at the same term of court, while it still had jurisdiction so to do in the exercise of a sound discretion, this action should be dismissed for the reason that the question has become moot.

The motion to strike the bill of exceptions from the files and to dismiss the appeal from the judgment of July 1, should be overruled. It is true that .the notice of appeal states that the order appealed from is the judgment entered on July 1, and that as appellants caused the court to make it, no error, prejudicial to them, could flow from it. That would be a ground for affirmance — not dismissal. "Whether the notice could be amended is not before the court.

Nor can I concur in the position taken by the majority, that seeking and having the trial court make the vacating order of July 1, which they have found is a nullity, could be considered an abandonment of the appeal from the judgment of May 19, 1939. While it should be dismissed, that is not the correct reason. If the entry of July 1 is a nullity, it seems to me it should be so regarded for all purposes.