Summary
stating that the "proceedings of a trial court are deemed correct unless error affirmatively appears on the face of the record"
Summary of this case from Shumate v. ShumateOpinion
No. 29501
Decided February 23, 1944.
Judgments — Petition to vacate foreclosure and order confirming sale — All issues finally determined in former proceeding to vacate — Insufficient proof in record on appeal — Judges of Court of Appeals qualified and disinterested.
APPEAL from the Court of Appeals of Cuyahoga county.
In 1934 the Superintendent of Banks of this state instituted in the Court of Common Pleas three actions for money judgment on promissory notes, foreclosure of mortgages, marshaling of liens and appointment of a receiver to take charge of the properties during the pendency of the actions.
Decrees of foreclosure and orders of sale were entered by the Court of Common Pleas, which appointed a receiver. The appellant Robert W. Halliday then prosecuted appeals on questions of law and fact to the Court of Appeals, that court found against appellant and he filed a petition to vacate the judgments claiming disqualification of appraisers and of a judge of that court. Motions to certify records were overruled and appeals as of right were dismissed by this court on June 3, 1942. 140 Ohio St. 337, 43 N.E.2d 238.
On December 30, 1942, appellant filed in the Court of Appeals a second petition to vacate and set aside the judgment of that court rendered on March 17, 1938, and an order of confirmation of sale. A motion was filed to strike that petition from the files on the grounds that (1) all issues tendered had been adjudicated adversely to Robert W. Halliday on March 16, 1942, and (2) the petition to vacate on account of alleged irregularity was not filed within three years as specified in Section 11640, General Code. The Court of Appeals granted the motion to strike the petition from the files, vacated its order, reinstated the motion and after hearing again granted the motion to strike the petition from the files.
Appellant gave notice of appeal to this court as of right from an action which originated in the Court of Appeals. He claims that the granting of the motion to strike deprived him of property rights without due process of law contrary to Section 5, Article I, Constitution of Ohio, and Section 1, Article XIV, Amendments to the Constitution of the United States.
Mr. Robert W. Halliday and Mr. William T. Arnos, for appellants.
Messrs. Squire, Sanders Dempsey, for appellees.
The record before this court does not contain proof sufficient to sustain the petition to vacate the judgment of the Court of Appeals. The proceedings of a trial court are deemed correct unless error affirmatively appears on the face of the record. Makranczy v. Gelfand, Admr., 109 Ohio St. 325, 142 N.E. 688.
Assuming the second petition to vacate was filed within limitation, all issues presented thereby had been finally determined in the proceeding under the former petition to vacate.
There is nothing in the present record to establish that appellant Robert W. Halliday had not had an adjudication by a Court of Appeals composed of qualified and disinterested judges.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, BELL, WILLIAMS and TURNER, JJ., concur.