Opinion
No. 32288
Decided July 18, 1951.
Court of Appeals — Jurisdiction to review judgments or final orders — Order granting motion for new trial — Not judgment or final order.
APPEAL from the Court of Appeals for Mahoning county.
This action was brought in the Common Pleas Court to recover for personal injuries and property damage alleged to have resulted from the negligent operation of a motor vehicle by defendant. The jury returned a verdict for defendant, and on the same day the court rendered judgment for defendant.
Thereafter, on motion for new trial, the court set aside the verdict and judgment and granted a new trial for error in submitting to the jury a special interrogatory.
The Court of Appeals, on appeal on questions of law, overruled a motion to dismiss the appeal, filed on the ground that the granting of a motion for new trial was not a final appealable order, and affirmed the order of the trial court setting aside the verdict and judgment and granting a new trial.
The allowance of a motion to certify the record brings the cause to this court for review.
Messrs. Rendinell Powers, for appellee.
Mr. Thomas E. Antonelli, for appellant.
No question of abuse of discretion in granting the new trial being involved, the judgment of the Court of Appeals is reversed and the cause remanded to that court with instructions to dismiss the appeal for want of jurisdiction, on authority of Green v. Acacia Mutual Life Ins. Co., ante, 1.
Judgment reversed.
WEYGANDT, C.J., ZIMMERMAN, STEWART, MIDDLETON, TAFT, MATTHIAS, and HART, JJ., concur.
ZIMMERMAN, MATTHIAS, and HART, JJ., although adhering to their views as announced in the Green case, supra, that Section 12223-2, General Code, is not in conflict with Section 6 of Article IV of the state Constitution, accord the decision and judgment of this court therein due recognition, and, therefore, only to avoid the chaotic condition which would result from a situation, created by the provisions of Section 2 of Article IV of the state Constitution, that a law would be valid in some appellate districts but invalid in other appellate districts, and for the sole purpose of assuring uniformity of procedure in our courts, concur in the reversal of the judgment of the Court of Appeals.