Opinion
No. 34005
Decided June 30, 1954.
Appeal — Final order — Order overruling motion to dismiss appeal — Not final appealable order, when — Certification by Court of Appeals as conflict case — Existence of final order or judgment prerequisite.
CERTIFIED by the Court of Appeals for Medina county.
APPEAL from the Court of Appeals for Medina county.
This is a nuisance and negligence action by certain landowners to recover for damage to plaintiffs' land and wells, claimed to have been caused by leakage and escape of gasoline from separate gasoline filling stations on separate neighboring properties, which stations have been maintained and operated at different times over a period of years by various defendants.
Separate demurrers to the amended petition were filed by certain of the defendants on the grounds that there is a misjoinder of parties defendant, that several causes of action are improperly joined, and that separate causes of action against several defendants are improperly joined. One demurrer includes the additional ground that the petition does not state facts which show a cause of action.
The trial court sustained the demurrers on the grounds of misjoinder of parties defendant and that separate causes of action against several defendants are improperly joined, and overruled the demurrers as to all other questions raised by them. The court ruled that "amendments by plaintiffs in conformity with this order will be permitted pursuant to further order setting a time or times for same."
On appeal to the Court of Appeals, the cause was heard on a motion to dismiss the appeal "for the reason that the order appealed from is not a final order from which an appeal can be taken." That court found that "it is unnecessary in order to dispose of the motion to dismiss the appeal * * * to pass upon the correctness and legality of the decision of the Court of Common Pleas in sustaining the demurrers, i. e., upon the merits of the appeal herein, and that the order of the Court of Common Pleas is a final order in that it denies plaintiffs-appellants the right to a joint and several judgment against the various defendants-appellees," and overruled the motion. The judges, finding their judgment to be in conflict with judgments pronounced by the Court of Appeals of the Second Appellate District, certified the record to this court for review and final determination.
The cause is now in this court on an appeal as of right as well as on such certification.
Mr. J.B. Palmquist and Mr. Ralph Burroughs, for appellees.
Messrs. McAfee, Grossman, Taplin, Hanning, Newcomer Hazlett, Mr. H. Vincent E. Mitchell and Messrs. Weber Williams, for appellants.
The cause has been presented on motions (1) that the record be returned to the Court of Appeals for a hearing of the cause on the merits, upon the ground that the order entered in that court is not a "judgment" within the meaning of the Constitution authorizing certification of the records because of conflict of judgments, and (2) that the appeal be dismissed for the reasons that the order appealed from is not a final order and that no debatable constitutional question is involved.
The order of the Court of Appeals overruling the motion to dismiss the appeal did not determine the action and is not a final order or judgment from which an appeal may be taken. The existence of a final order is a prerequisite to the authority of the Court of Appeals to certify the record in a conflict case. Consequently, there is no final order and no valid certification of the record by the judges of the Court of Appeals.
The motions are sustained.
Judgment accordingly.
WEYGANDT, C.J., MIDDLETON, TAFT, HART, ZIMMERMAN, STEWART and LAMNECK, JJ., concur.