This court being of'opinion that in the original action the cause had not, prior to the trial thereof by the court of common pleas, and entry of judgment therein, been specially assigned for trial out of its regular order within the meaning of Section 5134, Revised Statutes, nor assigned for trial to a *474jury in series, and the trial thereof by said court was before the action regularly stood for trial; and the court being further of opinion that the plaintiff in error’s contention in the present action is not res adjudicata because of the overruling of his motion to vacate judgment to be found at page 86 o.f the printed record, and marked “Defendants’ Exhibit 3.”

It is considered and adjudged that the judgment of the circuit court be, and the same hereby is, reversed, for error in affirming and not reversing the judgment of the court of common pleas of Cuyahoga county in this case of Rackle et al. v. Connors et al.

And proceeding to render the judgment which the said circuit court should have rendered, it is considered and adjudged that the said judgment of the court of common pleas be, and the same is hereby reversed, and said cause is ordered remanded to said court of common pleas of Cuyahoga county for further proceedings according to law.