[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

DECISION AND ENTRYOn July 17, 1998, Plaintiff-Appellant, Louis Davis, filed a motion in the Probate Division of the court of common pleas, requesting that court to vacate its judgment of June 27, 1997, settling and approving the account of the administrator of the estate of Samuel Davis, Sr. The court denied the motion on December 31, 1998. Louis Davis filed his notice of appeal from that order on February 1, 1999.

Louis Davis presents three assignments of error on appeal. The third assignment of error states:

THE PROBATE COURT ERRED WHEN IT DID NOT GRANT PLAINTIFF-APPELLANT A DEFAULT JUDGMENT AGAINST MARY JO, ET AL. (TRANSCRIPT P. 109 AND TRANSCRIPT PAGES 101-111 INCLUSIVELY AND COLLECTIVELY.)

The motion that Louis Davis filed on July 17, 1998 sought relief from the probate court's order of June 27, 1997 on account of alleged fraud. Pursuant to Civ.R. 60(B), such motions must be filed within one year after the judgment or order to be vacated was entered. When Davis filed his motion, more than one year had passed since the order that Louis Davis sought to vacate was entered. Therefore, the probate court did not err when it denied the motion.

The third assignment of error is overruled.

FIRST ASSIGNMENT OF ERROR

THE PROBATE COURT ERRED WHEN IT DENIED PROPRIA PERSONA LOUIS DAVIS THE RIGHT TO PERMIT HIS POWER OF ATTORNEY TO SPEAK FOR HIM AT THE AUGUST 12, SEPTEMBER 23 AND DECEMBER 2, 1998 HEARING. (TRANSCRIPT P. 5).

SECOND ASSIGNMENT OF ERROR

THE COURT ERRED BY NOT FINDING SERVED AND SUBPOENAED MARY JO MARABLE AKA MARY JO DAVIS IN CONTEMPT OF COURT FOR NOT SHOWING UP TO THE AUGUST 12, SEPTEMBER 23 AND DECEMBER 2, 1998 HEARINGS. LIKEWISE, FOR ATTORNEYS ECKHART, BREZINE AND BAGGOTT.

These assignments of error are rendered moot by our resolution of the third assignment of error. Therefore, pursuant to App.R. 12(A)(1)(c), we decline to determine them.

Having overruled the assignments of error presented, we affirm the judgment from which this appeal was taken. So Ordered.

__________________________________ THOMAS J. GRADY, PRESIDING JUDGE

__________________________________ JAMES A. BROGAN, JUDGE

__________________________________ FREDERICK N. YOUNG, JUDGE

Copies mailed to:

Louis Davis

Mary Jo Davis

Michael R. Eckhart, Esq.

Hon. George J. Gournaris