Opinion
No. 4018
Decided June 4, 1947.
Appeal — Final order — Order sustaining motion to file out of rule — Not judgment or final order.
An order of a Court of Common Pleas, sustaining a motion of an appellant in a case pending on appeal from a Municipal Court, for leave to file an assignment of errors and brief out of rule, is neither a judgment nor a final order from which an appeal may be taken to the Court of Appeals.
APPEAL: Court of Appeals for Franklin county.
Mr. Isadore L. Margulis, for appellant.
Messrs. Mayer Mayer, for appellee.
Plaintiff, appellant herein, recovered a judgment in the Municipal Court of Columbus, against the defendant, appellee herein, who appealed from the judgment to the Common Pleas Court. The notice of appeal was regular and it and the bill of exceptions were filed within time. Defendant failed to file assignments of error and brief within rule in the Common Pleas Court, and appellee there, appellant here, moved to dismiss the appeal, which motion was overruled. Appellant there, appellee here, moved the court for leave to file the assignment of errors and brief out of rule, which motion was sustained. From this order of the Common Pleas Court this appeal is taken, and the parties have briefed the question presented. No motion has been filed to dismiss the appeal, but counsel for appellee here argue that there is no final order or judgment from which an appeal may be prosecuted.
That claim is well made. Manifestly, the order made was not a judgment which is pending determination on the appeal in the Common Pleas Court, nor is it a final order, because it does not determine the action or prevent a judgment. Section 12223-2, General Code. See, also, 2 Ohio Jurisprudence, 135; Longworth v. Mullaly, 2 Handy, 131, 12 Dec. Rep., 366; Knollwood Cemetery Co. v. Cuyahoga County, 137 Ohio St. 388, 30 N.E.2d 687; Bankers Life Co. v. Waters, 39 Ohio App. 343, 177 N.E. 530.
Inasmuch as appeals may be prosecuted to judgments of final orders only, and we have neither here, we cannot entertain this appeal and it will be dismissed.
Appeal dismissed.
WISEMAN, P.J., and MILLER, J., concur.