Dusha v. Binz , 23 Ohio App. 285 ( 1926 )

Manton Manton, attorneys at law, filed a petition in cause No. 86581 in the court of common pleas, entitled Charles Binz,Plaintiff, v. Ida Dusha et al., Defendants, praying that the title to certain real estate might be quieted and the property partitioned. The action was hotly contested. The court finally ordered partition of the premises, and, upon distribution of the proceeds of the sale of the property resulting therefrom, Manton Manton, as attorneys for the plaintiff, were allowed an attorney fee of $1,200. The journal entry covering such allowance was not submitted to opposing counsel and was not submitted to the judge making the docket entry, but was submitted to another judge, and his approval indorsed thereon, and thereupon the same was filed August 18, 1922. On September 27, 1922, and at a subsequent term to that in which the allowance was made and the journal entry thereof filed, Ida Dusha and Louisa Frick, two of the defendants, filed a motion to modify the decree confirming the sale in so far as it related to the allowance of attorney fees, under the provisions of Section 11634, General Code. About 3 1/2 years later, the motion was overruled by the court and exception noted. Thereupon this proceeding in error was brought to reverse the judgment of the court below.

The bill of exceptions shows that a rule of court requires that all journal entries in contested cases must, before filing, have approval indorsed thereon by counsel of record or by the judge making the docket entry. As there was no approval by counsel, and no approval by the judge who made the docket entry and allowed the attorney fees, it was within the duty of the court to set aside the judgment upon a motion filed after term, upon the ground that there was irregularity in obtaining the judgment within the meaning of the provisions of subdivision 3 of Section 11631, General Code. In Lemieux v. Kountz, Guardian, 107 Ohio St. 84, 140 N.E. 637, the same rule of the court below was under consideration.

As the court below committed prejudicial error in refusing to grant the motion to modify its former order, the judgment will be reversed with directions to vacate or modify that order, in so far as it relates to the allowance of attorney fees, and to determine the question of attorney fees upon its merits, and fix the amount to be allowed, if any.

In passing, we cannot refrain from observing that the fact that the motion to modify the judgment was pending in the trial court for about 3 1/2 years is one of those occurrences which tends to bring the administration of justice under criticism for its delays. It is not apparent that there could be a reasonable excuse therefor.

Judgment reversed.

RICHARDS, P.J., concurs.

YOUNG, J., not participating.