Nos. 28153 and 28164
Decided December 18, 1940.
Appeal — No final order — Motion to dismiss appeal on fact and law overruled — Court of Appeals retained cause on questions of law — Section 12223-22 (2), General Code.
When a motion to dismiss an appeal on questions of fact and law is overruled and the cause is retained for review on questions of law under the requirements of Section 12223-22 (2), General Code, such action does not constitute a final order within the purview of Section 12223-2, General Code.
CERTIFIED by the Court of Appeals of Cuyahoga county.
Both of these cases originated in the Court of Common Pleas of Cuyahoga county. The first is a suit in chancery, and the second case is claimed by the defendant to be of the same nature.
In each case the losing party filed a notice of appeal from the trial court to the Court of Appeals on questions of fact and law. In each case no appeal bond was filed. In each case a motion to dismiss the appeal was filed. Furthermore, in each case the Court of Appeals refused to dismiss the appeal and retained the cause for review on questions of law alone under the requirements of Section 12223-22 (2), General Code.
Likewise, the Court of Appeals certified the record of each case to this court on the ground that the judgment is in conflict with that of the Court of Appeals of Butler county upon the same question in the case of Cramer v. Cramer, 63 Ohio App. 358, 26 N.E.2d 785. In the second case the Court of Appeals found further that its judgment is in conflict also with that of the Court of Appeals of Auglaize county in the case of Stevely v. Stoll, 57 Ohio App. 401, 14 N.E.2d 419.
Mr. William T. Arnos, for appellant, The Knollwood Cemetery Company.
Messrs. Snyder, Seagrave, Roudebush Adrion, for appellee, the village of Mayfield Heights.
Mr. James Bravo and Mr. R.W. Halliday, for appellee, Robert W. Halliday.
Mr. Thomas J. Herbert, attorney general, Mr. E.S. Lindemann and Mr. Frank Wilke, for appellant, S.H. Squire, superintendent of banks.
The first question requiring consideration is whether the Court of Appeals entered final orders when it overruled the motions to dismiss the appeals and retained the causes for review on questions of law.
Section 12223-2, General Code, reads in part as follows:
"An order affecting a substantial right in an action, when in effect it determines the action and prevents a judgment * * * is a final order which may be reviewed, affirmed, modified or reversed * * *."
Did the orders of the Court of Appeals in effect determine the actions and prevent judgments? That the answer must be in the negative is apparent when it is observed that the Court of Appeals did nothing to determine the actions or to prevent judgments upon the merits of the controversies. On the contrary, the questions relating thereto were expressly reserved for future consideration. Thus it is possible that the appellants may ultimately prevail in that court.
In the case of Thatcher v. Watson, 51 Ohio St. 561, this court held that the overruling of a motion to dismiss an appeal is not a final order. Fifteen years later in the case of Home Building Realty Co. v. Blasberg, 81 Ohio St. 482, 91 N.E. 1131, the court adhered to the earlier pronouncement. More recently in the case of Leashley v. Rezac, 132 Ohio St. 304, 7 N.E.2d 229, the court restated the rule in holding that "the overruling of the motion to dismiss the appeal * * * is not a final order or judgment from which appeal may be prosecuted."
Therefore, in view of the present posture of the instant cases, the only course open to this court is to remand them to the Court of Appeals for further consideration and final determination.
DAY, ZIMMERMAN, TURNER, WILLIAMS, MATTHIAS and HART, JJ., concur.