Summary
In Betz v. Industrial Commission, 139 Ohio St. 624, 41 N.E.2d 701, citing Holbrook v. Connelly, the court ordered the dismissal of an appeal on similar facts.
Summary of this case from Bell v. BellOpinion
No. 28943
Decided May 6, 1942.
Appeal — No final order — Demurrer to petition sustained.
APPEAL from the Court of Appeals of Stark county.
Mr. John C. Fontana and Mr. John Rossetti, for appellee.
Mr. Thomas J. Herbert, attorney general, and Mr. E.P. Felker, for appellant.
Plaintiff filed in the Common Pleas Court a petition on appeal from a disallowance by the Industrial Commission of his claim for workmen's compensation.
Defendant filed a demurrer, which was sustained and plaintiff was granted leave to plead further.
Plaintiff filed an amended petition and a demurrer thereto was sustained. The concluding portions of the entry recite, "it is ordered, adjudged and decreed that the demurrer of the defendant to the plaintiff's amended petition be and is hereby sustained. Exceptions to the plaintiff." The record does not contain an entry either granting further leave to plead or entering judgment for the defendant.
Plaintiff prosecuted an appeal on questions of law to the Court of Appeals. The record does not disclose a motion to dismiss for want of a final order. The Court of Appeals entered judgment reversing the action of the Court of Common Pleas in sustaining the demurrer to the amended petition.
After a motion to certify the record was allowed and the case was submitted upon its merits, attention of counsel was directed to the fact that the record presented to this court does not contain a final order in the Court of Common Pleas. That omission was conceded by counsel.
The judgment of the Court of Appeals is reversed and the cause is remanded to that court with directions to vacate its judgment of reversal and to remand the cause to the Court of Common Pleas for further proceedings. Holbrook, Admr., v. Connelly, 6 Ohio St. 199.
Judgment reversed and cause remanded.
WEYGANDT, C.J., TURNER, WILLIAMS, MATTHIAS, HART and ZIMMERMAN, JJ., concur.
BETTMAN, J., not participating.