The two appeals grow out of an action which originated in the Court of Common Pleas, to construe the will of John E. Sullivan, deceased, and for a declaratory judgment as to the interests involved. The case is here on a motion to dismiss the appeal, and on a motion to strike the bill of exceptions from the files.
To determine the motions, it is necessary to make a chronological statement of the proceedings as disclosed by the record.
It appears that Judge Alfred Mack, of the Court of Common Pleas, on May 19, 1939, entered a decree construing the will of John E. Sullivan, and declaring the rights of legatees and distributees thereunder.
On May 31, the defendants gave notice of appeal from the decree of May 19.
The record next discloses that on July 1, a judge of the Court of Common Pleas, other than the judge who entered the decree of May 19, entered a judgment, setting aside Judge Mack's decree of May 19. Why the judgment of May 19 was set aside is not disclosed in terms by the record.
While it is true a trial court has control of its judgments during the term and may set aside a judgment entered at that term for good cause shown, and in a proper proceeding, and on notice to opposing counsel to that effect, and in the exercise of sound discretion, has the power to do so, there are several objections to the action of the court in setting aside this judgment of May 19.
The Common Pleas Court had no power to vacate the judgment after the appeal to the Court of Appeals. The notice of appeal vests jurisdiction of the case in the appellate court. Moreover, no proper proceeding of any kind was taken by either party to have the judgment set aside. Further, the defendants by procuring the vacation of the judgment of May 19, in *Page 464 effect, abandoned their appeal, and will be held to have done so.
There is in the record an affidavit to the effect that counsel, securing the setting aside of the judgment, called opposing counsel, and stated he desired the judgment set aside for the reason that he was out of time for filing his bill of exceptions, and desired additional time for the filing of the same. If this affidavit was in the record in a bill of exceptions the vacation of the judgment would be promptly reversed.
This court and other courts have held that it is not within the sound discretion of the court to set aside a judgment for the purpose of tolling the time for filing a bill of exceptions.
As above stated, the action of the trial court setting aside the judgment was subsequent to the filing of the notice of appeal on law and fact to the judgment of May 19. The notice of appeal removed the entire case to the Court of Appeals, and suspended the judgment of the court below. The trial court, by the appeal, loses all power to do anything in the case. See 2 Ohio Jurisprudence, 373, 375, 376, 377, Sections 317, 318, 319, and 321; Taylor v. Fitch, 12 Ohio St. 169, 172; 3 American Jurisprudence 192, Section 528; 4 Corpus Juris Secundum, 1091, Section 607.
It follows that the judgment of July 1, 1939, setting aside the judgment of May 19 was void and of no force or effect.
After the entry of July 1, 1939, a new hearing was had by Judge Mack, on July 7, 1939, in which the court entered a decree in words and terms of the judgment of May 19, which, in effect, constituted but a reentry of the original judgment.
From the judgment of July 7, there is no appeal.
The judgment of July 1, setting aside the judgment of May 19, being void, the proceedings and judgment of July 7 are void, and of no effect. The appeal, based *Page 465 upon the judgment of July 1 is dismissed, that judgment having been procured by appellants they may not prosecute an appeal from their own judgment.
There does not appear to be any bill of exceptions in the appeal from the judgment of May 19, 1939. There is, therefore, nothing to strike and the motion to strike the bill of exceptions will be stricken from the record.
Our finding is that the action of the trial court vacating the judgment of May 19, 1939, is void and of no effect; that the appeal from that judgment was abandoned by appellants in procuring the vacation entry; and that the proceeding and judgment of July 1 is a nullity.
For the reasons above stated, the appeals are dismissed.
Appeals dismissed.
ROSS, J., concurs.