Summary
In Davis v. Finch (1961), 115 Ohio App. 104, 20 O.O.2d 216, 184 N.E.2d 596, the court held that summary judgment on an issue of liability alone, leaving the question of damages to be later determined, is interlocutory in character and not appealable. Accordingly, the interlocutory nature of such an order precludes immediate appeal. Cammack v. V.N. Holderman Sons (1973), 37 Ohio App.2d 79, 80-81, 66 O.O.2d 135, 136, 307 N.E.2d 38, 39-40.
Summary of this case from Summit Petroleum v. K.S.T. Oil GasOpinion
No. 6727
Decided November 21, 1961.
Summary judgment — Interlocutory, when — Not appealable.
A summary judgment on an issue of liability alone, leaving the question of damages to be later submitted to a jury, is interlocutory in character and not appealable. (Section 2311.041, Revised Code.)
APPEAL: Court of Appeals for Franklin County.
ON MOTION to dismiss.
Mr. Mitchel D. Cohen, for appellee.
Mr. Clifford L. Rose and Mr. Walter J. Siemer, for appellant.
A summary judgment on the question of liability was granted in the Municipal Court of the city of Columbus, but the question of damages was to be submitted to a jury. The defendant has appealed the granting of the summary judgment to this court.
The plaintiff, appellee herein, has filed a motion asking this court to dismiss the appeal for the reason that the entry of summary judgment in favor of the plaintiff concerns liability alone and is not reviewable at this time. The plaintiff cites the last sentence in subdivision (B) of Section 2311.041, Revised Code, where it is expressly stated that a judgment on the issue of liability alone is interlocutory in character.
It appears that the motion to dismiss is well taken and will, therefore, be sustained.
We note that the defendant, the appellant herein, desires to raise a question as to whether Section 2311.041, Revised Code, applies to this case as it was a pending action at the time the statute was enacted and, in the absence of an expressed provision, the newly enacted section should not apply to pending actions. While we are not called upon to decide this question at this time, we do call their attention to the discussion of the problem as found in the case of Schlagheck v. Winterfeld et al., Trustees, 108 Ohio App. 299. See, also, 20 Ohio State Law Journal, 613; and XXXIV Ohio BAR, 1207, at 1208.
Motion sustained.
DUFFEY, P. J., and BRYANT, J., concur.