OPINION

This matter is presented to the jourt upon a motion to dismiss an appeal on questions of law, for the reason that such appeal was not filed in time.

On November 16, 1938, the common pleas court entered a decree in foreclosure. Thereafter, a motion for new trial was filed. One of she reasons assigned was that the decision and judgment was not sustained by sufficient evidence and that the decree goes much further than is warranted by the evidence.

On January 11, 1939, the court granted this motion and vacated the judgment, without stating its reasons therefor.

Appeal was taken to the Court of Appeals, and the appeal dismissed, for the reason that no final order existed in the common pleas court, the granting of a motion for a new trial not being a final order.

Trial was again had resulting in a decree on October 5, 1939, containing an order setring aside a constructively fraudulent conveyance, foreclosure and order for sale of certain real estate. A motion for a recall and rehearing of certain witnesses was made. October 6th;. 1939, and overruled, November 8th, 1939. Motion for new trial was filed October 6th, 1939. Separate findings of fact and conclusions of law were entered December 2nd, 1939. January 6th, 1940, motion for new trial was overruled and in the same entry judgment was given for a certain sum and foreclosure and order for sale decreed “as heretofore ordered.”

No motion for a new trial was filed thereafter.

Notice of appeal was filed January 17th. 1940, specifically mentioning the judgment of January 6th. 1940, as the judgment appealed from.

No appeal was taken from the decree of October 5th, 1939, and this decree was not vacated or set aside.

Upon consideration of the foregoing, it is the conclusion of the court that the motion to dismiss the appeal shall be overruled-