Opinion
No. 82-1718
Decided February 1, 1984.
Appellate procedure — Stay of wrongful death action pending appellate review of criminal case — Stay is not a final, appealable order — R.C. 2502.02.
APPEAL from the Court of Appeals for Summit County.
Appellant, Magdaline N. Milo, Executrix of the Estate of Constantine R. Milo, commenced a wrongful death action on April 15, 1981 against the decedent's brother, Frederick P. Milo, appellee, who was charged with the aggravated murder of decedent, tried, and found guilty in the Court of Common Pleas of Franklin County. The civil action was assigned for trial on November 17, 1982. Subsequently, appellee filed a motion to stay the action pending completion of appellate review of the criminal case. On August 11, 1982, the trial court granted the motion to stay with the following words:
"Upon motion of the Defendant for good cause shown, it is the order of this court that the instant proceedings shall be stayed until the Appellate process is complete as to the case of State v. Milo.
"It is so ordered."
Appellee appealed his murder conviction to the court of appeals where, on September 30, 1982, his conviction was affirmed. State v. Milo, 6 Ohio App.3d 19. This court overruled a motion for leave to appeal on January 26, 1983.
Appellant appealed the stay order to the court of appeals. Upon appellee's motion, the appeal was dismissed for lack of a final, appealable order.
The cause is now before this court pursuant to an allowance of a motion to certify the record.
Buckingham, Doolittle Burroughs Co., L.P.A., Mr. Orville L. Reed III, Ms. Karen M. Doty, Messrs. Goldman, Tsarnas Vuillemin and Mr. Lawrence W. Vuillemin, for appellant.
Nukes Perantinides Co., L.P.A., Mr. Paul G. Perantinides and Ms. Elizabeth B. Manning, for appellee.
The question presented by this appeal is whether an order staying proceedings in a civil action pending completion of the appellate process in a related criminal case is a final, appealable order within the meaning of R.C. 2505.02. We hold that it is not.
R.C. 2505.02 defines a "final, appealable order" as follows:
"An order affecting a substantial right in an action which in effect determines the action and prevents a judgment * * *."
The instant stay neither affects a substantial right, determines the action, nor prevents a judgment. Likewise, in Bd. of Edn. v. Paxton (1979), 59 Ohio St.2d 65 [13 O.O.3d 58], we held that a stay was not a final, appealable order.
During oral argument, this court was informed that appellee's petition for certiorari to the Supreme Court of the United States had been denied on May 31, 1983. The petition sought reversal of this court's denial of appellee's motion for leave to appeal his criminal conviction. It was also revealed that appellee had filed a petition for habeas corpus collaterally attacking the murder conviction.
It is clear that "the appellate process is complete as to the case of State v. Milo." The stay order granted on August 11, 1982 does not and should not extend to any further proceedings. Appellee's pursuit of post-conviction relief under R.C. 2953.21 et seq. or further proceedings in habeas corpus are not covered by the stay.
Accordingly, the judgment of the court of appeals dismissing appellant's appeal is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.