APPLICATION FOR REHEARING
Decided March 26, 1948.
By THE COURT.Submitted on application'for rehearing, consisting of seventeen grounds.
The first ground is to the effect that the Court was in error “when it says that there was only one or even two grounds and that the ground or grounds of each motion (to dismiss), were identical”. We made the observation in our original opinion on this appeal that the “Defendant’s motion to dismiss plaintiff’s amended petition was made orally .upon the identical 'ground of the motion to dismiss in the first trial, *429namely, ‘that the court does not has jurisdiction of the subject’ matter and for the reasons formerly assigned and urged upon the first appeal, namely, that ‘the old Code governs this court and no other court has any jurisdiction to set aside this judgment, if the new Code governs' it is unconstitutional’.” It should be recalled that there was no» written motion to dismiss plaintiff’s cause of action. It was interposed orally. The quoted matter is taken from a copy of the proceedings, September 9, 1946, when the motion to' dismiss was made at the second hearing in the Probate Court,, and purports to be in the language of counsel for the defendant. We have quoted freely from the observations of the trial judge and’claims of respective'counsel, though not a part of the bill of exceptions, as have counsel. This has been done by common consent. In our former opinion we followed the proceedings, not only at the time that the motion to dismiss’ was first made, but also what was done on the application of plaintiff for rehearing, which was granted.
The second ground of the motion is to the effect that, “As the court has reversed the judgment of the trial court, it has apparently found the failure of th© trial court to incorporate the reasons for sustaining the motions in the entry to be prejudicial”. We refer counsel to page 4 of our former opinion in which we say, “However, failure to do so (to carry into the entry the specific reasons for the dismissal) was not prejudicial to the plaintiff if the order on the motion for any reason was properly made under the law”.
The third ground of the motion relates to our construction of the effect of the decision in Montgomery County v Carey, 1 Oh St 463. We have stated our view upon the effect of this decision upon the action of the court in sustaining the motion to try the case de novo.
The fourth ground of the motion is an exception to our view of the application of the doctrine of the “law of. the case” to the trial of the case a second time in th© Probate Court. We discussed the “law of the case” at length because we were required to give it consideration as it was assigned as a ground of error. It is our judgment that this case, as clearly as any which we have had under consideration, required the trial judge to follow the mandate of this court on the former appeal. However, his failure to do so was not considered by us as dispositive of the correctness of the second judgment of dismissal.
The 5th, 6th and 7th grounds of the application pertain to our construction of the Stafford opinion. We discussed the Stafford case at great length, probably more than was required, especially in view of our conclusion that it was not *430controlling of the law in this case for the reasons which we assigned.
The 8th ground of the application relates, to the question of abatement as to which we care to add nothing to our former opinion.
The 9th ground of the application objects to our failure to differentiate between actual or constructive fraud where considered throughout our former opinion on this appeal. Manifestly, this question was decided in the former appeal wherein we held that constructive fraud only was before the trial judge upon the final presentation of the case. So that, when we speak of fraud, obviously we refer to constructive fraud. . •
The 10th ground of the application is to the effect that in holding that the old Code applies in this case we have changed position from the former appeal. We have in. our former opinion discussed the extent to which the old Code has application to the judgment here. We have made no change in our construction of the law of this case at any time and, in our judgment, every proposition that we have advanced in the opinion on the second appeal is consistent with our decision on the first appeal.
The 11th, 12th, 13th, 14th, 15th, 16th and 17th grounds of the application do not, in our judgment, require any modification or elucidation of our former opinion.
Nothing is advanced in the application for rehearing which is convincing that we failed to discuss and pass upon every material, controlling, legal question presented upon the errors assigned. The application for rehearing will be denied.
WISEMAN, PJ, MILLER and HORNBECK, JJ, concur,APPLICATION OF THE DEFENDANTS-APPELLEES
Decided April 10, 1948.
By THE COURT.Submitted on application of the defendants-appellees,
“(1) To specify in writing the ground or grounds of its reversal of the judgment involved in the second appeal in the above entitled cause as provided by §1223-29.”
Manifestly, this reference to §1223-29 GC is in error and should be §12223-21 GC. Counsel for the parties should comply with Rule VII of our Rules, and doing so, the grounds of the reversal may be carried into the entry.
*431“ (2) To certify the record of this cause upon the second appeal to the Supreme Court for review and final determination on the ground that the judgment of this Court is in conflict with judgments pronounced upon the following questions by other Courts of Appeal of this State, to wit:
‘“(1) The rule in this State as to the “law of the case”' as announced in Collins v Casualty Co., 27 Abs. (6th Dist.) 483; Peerless Corp. v. Taylor, 52 Oh Ap (8th Dist.) 549; Gusweiler v Apts. Inc., 54 Oh Ap 132 (1st Dist.) 133; Kern v Cartage Co., 55 Oh Ap (7th Dist.) 481; Board of Education v Construction Co., 79 Oh Ap (1st Dist.) 193.
‘“(2) The rule in this State as to the abatement of nonadversary proceedings upon the death of a party as announced in In Re: Estate of Knofler, 73 Oh Ap 383.’”
This part of the application will be denied.
(1) The “law of the case”, although discussed at length in the opinion, was not made the basis in any particular, of the reversal.
The second branch of the second ground of the motion will be overruled for the reasons stated in our original opinion on this appeal.
WISEMAN, PJ, MILLER and HORNBECK, JJ, concur.