ON APPLICATION FOR REHEARING
Decided Jan 17, 1934
By THE COURTThe above entitled cause is now being determined on application of plaintiff in error for rehearing. We have carefully considered the memorandum, in support of application for rehearing. We find nothing therein not considered and covered in the original opinion.
It is not the ministerial act of recording which was referred to as a quasi judicial act of the Probate Court as indicated in Bird v Young, 56 Oh St, 210. It is the determination that is the quasi judicial act that he be satisfied that the declarant is. of sound mind and memory and free from any restraint. The legislation giving the Probate Court control over their judgments the same as Common Pleas Court is rather of recent origin. It was not necessary that the court use the term “fraud” in his order setting aside the former order. The finding that the court did make as a basis for setting aside the order, constituted a fraud. §11634 GC refers to proceedings in the Common Pleas Court and Court of Appeals. The provisions of §10501-17 GC refer to Piobate Court and by its general terms may invoke the provisions of the law applicable to Common Pleas Courts in a proper case. Reference is made in the original opinion to the rights of the Probate Court where acting sua sponte. The question of the abuse of a discretion of a Probate *158Court may always be reviewed. As indicated in the original opinion we did not have before us the record upon which the court based its finding and therefore it must be assumed that the facts supported his conclusions of fact. The motion for rehearing will be overruled.
I-IORNBECK, PJ, KUNKLE and BARNES, JJ, concur.