A motion has been filed by the defendant in error, the Bessemer Trust Company, as executor of the estate of Charles W. Palmer, deceased, to dismiss the petition in error upon the ground that none of the plaintiffs in error has any legal interest in the subject-matter of this action. There has been filed in support of the motion certain affidavits and records in support of that contention. The case originated in the probate court of Montgomery county and was appealed by defendant in error to the court of common pleas. The action was then tried in the court of common pleas, resulting in a judgment in favor of the defendant in error to the effect that the decedent was a resident of the state of Pennsylvania at the time of his death. It is said in the briefs that the plaintiffs in error together with one other party were parties in the probate court when the finding was made that the deceased was a resident of Montgomery county, Ohio. The same parties were also parties on appeal in the common pleas court. It was discovered in the trial of the case in the court of common pleas that one of the parties was a beneficiary under the will of Palmer, so that when it came to the motion for new trial the only parties moving for a new trial were the plaintiffs in error. The record shows that after the judgment of the court of common pleas, *537and after the order overruling the motion for new-trial on the same date, there appears the following entry:
“Entry fixing bond at $1000.00 M. 112 P. 1.
“This day this cause came on to be heard on the oral application of counsel for Dwight B. Cunningham, et al., for an order of this Court fixing the amount of the undertaking to stay execution in this case, and it appearing to the court that this case falls within the provisions of Paragraph 4, Section 12265 of the General Code of Ohio and that it is the duty of this Court to fix the amount of the bond staying execution pending error proceedings in this case.
“It is, therefore, ordered that said undertaking in error staying execution of the final order of this court be fixed at the sum of $1000.00.
“Approved. Snediker, Judge.
“McClure & McClure; Sigler & Denlinger,
“Attorneys for Bessemer Trust Co., as Executors.
“Bradley McK. Burns & H. T. Leyland,
“Attorneys for Dwight B. Cunningham, et al.
“November 24, 1930. Bond filed.”
We are of opinion that under the record of this case including the action of the court of common pleas as to the bond, and the approval of said entry by the various counsel, there would be a waiver by the defendant in error as to the plaintiffs’ right to institute the proceedings in the Court of Appeals. The authority for this is found in the following cases: Ohio Life Ins. & Trust Co. v. Goodin, 10 Ohio St., 557; Cairnes v. Knight, Exr., 17 Ohio St., 68; Bank v. Green, 40 Ohio St., 431;Bulkley v. Stephens, 29 Ohio St., 620; Wangerien v. Aspell, 47 Ohio St. 250, 24 N. E., 405.
*538It is not clear to our minds that the question of the interest of these plaintiffs in error may not be again considered on the hearing of the petition in error.
In the case of Ohio Life Ins. & Trust Co. v. Goodin, supra, it is held: “In order to justify the reversal of a judgment or decree upon error, the record must show affirmatively, not only that error intervened, but that it was to the prejudice of the party seeking to take advantage of it.”
The same proposition is decided in some of the cases cited. We are clear that so far as the motion is concerned it must be overruled.
On Motion to dismiss.
(Decided April 18, 1931.)
A motion has been filed in this court by counsel for plaintiff in error, Dwight B. Cunningham, to require this court to summarily reverse the judgment of the court of common pleas, to dismiss the appeal from the probate court for want of jurisdiction. The original proceedings began in the probate court, appointment of an executrix has been made in that court, and an inventory has been rendered. These proceedings began by the filing of exceptions to the inventory. The exceptions were authorized by Section 5346 and by Section 10639, General Code.
The exceptions raised two issues,* one as to the inventory being made a basis for the inheritance tax, and the other as to the testator being a resident of Montgomery county, Ohio, or as to his being a resident of the county of Allegheny in the state of Pennsylvania. The case was heard upon the exceptions. The probate court first decided the question in which most of the parties before the probate court were interested, to wit, the residence of the testator, *539and held that said testator was a resident of Montgomery county, Ohio.
The probate court then proceeded to a finding on the question of the inheritance tax, holding against the exceptions, and that the inventory was proper as against the taxing officials. The case was then docketed in the court of common pleas on appeal, and later came on for hearing. The court of common pleas decided upon the one issue, to wit, as to the residence of the testator, in favor of the Bessemer Trust Company, finding that the testator was at the date of his death a legal resident of the county of Allegheny in the state of Pennsylvania.
No other question was decided by the court of common pleas. It may be remarked that if the question as to validity of the inheritance tax was involved in the appeal to the court of common pleas then that branch of the case would still remain in said court.
Prom the judgment of the court of common pleas as to the legal residence of the testator, Cunningham and others prosecuted error to this court.
The question therefore is: Should this court, upon the motion of counsel for plaintiffs in error, grant this motion to dismiss this error case, dismiss the appeal in the court of common pleas, and dismiss the proceedings in the probate court?
We have examined all the cases cited in the briefs and we do not think any of them are authorities for the present case. It must be observed that there were two subjects presented in the probate court. The first was as to the inheritance tax and the second was the question of the residence of the testator. The first question was between the estate and the *540taxing authorities. The second question was between the heirs of the estate, or rather the plaintiffs in error, and the executor of the estate. The second question was the one considered and decided by the court of common pleas and is the question for decision here. This question arose under proceedings instituted under Sections 10639 and 10640, General Code, and was one over which both the probate court and the court of common pleas had jurisdiction.
The court of common pleas has decided the one question over which it had jurisdiction, and as to which the tax commission had no concern or interest. Its decision was within its jurisdiction and the judgment of the lower courts cannot be held as erroneous because no notice was given to the state tax commission or county auditor.
The motion now before the court must be' overruled.