This cause is submitted on application of defendant-appellant for rehearing and motion of plaintiff-appellee to strike such application from the files on the ground that there is no provision in the rules of the Courts of Appeals, effective January 1, 1949, permitting a rehearing or the filing of an application for rehearing.
Within ten days after the decision in this case was announced, appellant filed his application for rehearing in the office of the clerk of courts. Under a former rule of the Courts of Appeals (Rule XI), applications *Page 375 for rehearing were recognized. It is quite evident that appellant has attempted to follow the procedure under the former rule which has been superseded and repealed effective January 1, 1949. There was no provision in the former rules, nor is there in the present rules, for filing an application for rehearing in the office of the clerk of courts. A motion to strike such application from the files is appropriately filed.
Although the present rules of court do not provide for the filing of an application for a rehearing, such application, if presented, will be given such recognition as the court deems proper. If a vital question is raised which would require a different decision by the court, the court will give due recognition to such application. If the application is without merit, the court will summarily deny the application or ignore it entirely since no provision is made for a rehearing. Such application should not be filed with the clerk of courts, but should be presented to the presiding judge of the Court of Appeals.
In the instant case, the application fails to present any matter which was not formerly considered by the court. Appellant contends that the court did not pass upon all errors assigned as it is required to do by Section 12223-21, General Code. The nature of the question raised warrants a brief discussion.
In arriving at this court's conclusion, all errors assigned were considered. The court found that the errors assigned were not well made and affirmed the judgment. Although the provision in Section 12223-21, that "all errors assigned shall be passed upon by the court," is mandatory, sufficient, compliance with this provision is shown where the court finds that there is no error in the record prejudicial to the rights of the appellant and affirms the judgment; such finding being tantamount to overruling each and every error *Page 376 assigned and specific reference to the errors assigned by designated number not being required. In re Wysong, 30 Ohio Law Abs., 316.
The motion to strike the application for rehearing from the files is hereby sustained.
Motion sustained.
MILLER, P.J., HORNBECK and WISEMAN, JJ., concur.