Opinion
Decided May 16, 1938.
Appeal — Final order — Overruling motion to dismiss, not final order, when.
The overruling of a motion to dismiss an appeal from a Municipal to the Common Pleas Court is not a final order from which appeal can be taken to the Court of Appeals.
APPEAL: Court of Appeals for Lucas county.
Mr. Edgar M. Flowers, for appellant.
Mr. George S. Moss, for appellee.
In the Municipal Court of Toledo the plaintiff recovered a judgment. The defendant filed an appeal to the Common Pleas Court of Lucas county, following the procedure as provided in the Appellate Procedure Act, Section 12223-1 et seq., General Code. Plaintiff filed a motion to dismiss that appeal for the reason that the attempted appeal was not perfected as required by Section 1579-310, General Code, a section of the Municipal Court Act of Toledo. This motion was overruled, and from that action of the Common Pleas Court the plaintiff appealed to this court.
Here the defendant has moved to dismiss this appeal "for the reason no final order has been made in the court below." This motion must be granted for the reason stated. This situation presents the question: Is the overruling of a motion to dismiss an appeal a final order from which an appeal may be taken? Section 12223-2, General Code, defines a final order. This definition is not materially different than it was when first enacted as Section 512 of the Code of Civil Procedure, 51 Ohio Laws, 145, and later became Section 6707, Revised Statutes. The effect of this section was tersely discussed in Holbrook, Admr., v. Connelly, 6 Ohio St. 199, where review was sought of various rulings of the trial court on demurrers and motions to the pleadings, and the court said:
"It does not appear that either of the decisions made, `in effect determined the action and prevented the judgment.' For aught that appears, the defendant may yet succeed in his defense to said action. The record, therefore, discloses no foundation for a proceeding in error."
In Thatcher v. Watson, 51 Ohio St. 561, the court said an order, "overruling the motion to dismiss the appeal, is not a final order." This rule was adhered to in Lowellville Coal Mining Co. v. Zappio, 80 Ohio St. 458, 469, 89 N.E. 97, and followed in Home Bldg. Realty Co. v. Blasberg, 81 Ohio St. 482, 91 N.E. 1131. The lower court report of the latter case appears in 16 C.C. (N.S.), 504, 28 C.D., 683. In similar cases, McArthur Bros. v. Central Trust Co.; Broadhead v. Ohio Southern Rd. Co., 21 C.C., 654, 656, 12 C.D., 149, 150, the reasons for this principle are discussed and that judgment was affirmed 63 Ohio St. 593, 60 N.E. 1129.
The defendant's motion to dismiss this appeal must be granted, and it is not necessary at this time to consider or discuss the action of the Common Pleas Court in overruling the plaintiff's motion to dismiss the appeal to that court.
Appeal dismissed.
LLOYD and OVERMYER, JJ., concur.