ON APPLICATION FOR REHEARING
Decided Nov 4, 1936
By THE COURT.
The above entitled cause is now being *678determined on appellant’s application lor rehearing.
Very able and comprehensive briefs have been filed by counsel, and, in addition, we permitted oral presentation.
Neither in the briefs nor in the oral argument do we find any proposition presented which was not considered before releasing the original opinion.
The supplemental brief filed in support of the application for rehearing emphasizes the fact that regardless of whether the decisions were rendered by the Court of Appeals of the Fifth District or the Second District, in each instance it must be characterized as the judgment of the Court of Appeals of the Eighth District.
This is exactly what we had in mind when preparing our original decision overruling motion for new trial and ordering judgment is final.
It is true that under the provisions of §11631, GC, Courts of Common Pleas and Courts of Appeal have absolute control of their judgment and may modify or vacate same during term. We also considered Jones v Harmon et, 122 Oh St, 120, and New York Life Insurance Co. v Hosbrook, 130 Oh St, 101. In the latter case the earlier rule announced in Gohman v City of St. Bernard, 111 Oh St, 726, was overruled as to the first and second propositions of the syllabus. The reasoning announced in the Hosbrook case, 130 Oh St, supra, does not cover the situation in the instant case.
It is our conception that there is a marked difference between a retrial ordered by a reviewing court and an order of final judgment on the record then presented. We see no distinction between the final judgment entered by the Common Pleas Court on the order of the Court of Appeals ard where the Court of Appeals enters the same judgment.
The application for rehearing will be overruled.
Exceptions will be allowed.
BARNES, PJ, HORNBECK and BODEY, JJ, concur.