ON APPLICATION FOR REHEARING
BY THE COURT:The above-entitled cause is now being determined on ap*198pellant’s application for rehearing on three separately stated and numbered grounds. Appended to the motion is a six-page memorandum.
We have carefully examined the separately numbered specifications and the argument as contained in the memorandum. Under the fourth specification, the claim is made that we failed to follow our decision in the case of Sackett v McClure, 29 Abs 560. For the benefit of counsel, we would say that at the time of rendering our original opinion, we were familiar with our opinion of April 6th, 1939, in the Greene County case entitled Sackett v. McClure. We are now prompted to re-examine, and this we have done. The case is so dissimilar to the instant case that we find it difficult to argue on distinguishing features. In the first place, the proceeding to open up was brought after term and hence was controlled by the plain provisions of the statute. Secondly, the purported case in no sense involved a question of abuse of discretion.
It is our opinion that counsel for appellant fails to apprecíate the universal rule of law that during term a trial court has absolute control over its judgment. This provision is just as positive as it is possible to make it.
No language, however strong, will take away the right of review where there is shown an abuse of discretion. The exercise of discretion does not necessarily follow along strict rules of law, but may be exercised in what the count conceives to be demanded in justice. We make reference to the case of The First National Bank of Dunkirk, Ohio v Smith et, 102 Oh St 120, both syllabi 1 and 2 support the above reasoning.
We recognize the principle that under certain conditions where it conclusively appears that the trial court’s action was predicated alone upon a misconstruction of the law, that the judgment may not stand, but where the record discloses an exercise of judgment in addition, we will sustain, unless there appears an abuse of such discretion.
Other matters urged in the application were all considered before releasing our original opinion. We find no reasons to change our views. The application for rehearing will be overruled.
BARNES, P. J., HORNBECK and GEIGER, JJ., concur.