Opinion
No. 27317
Decided March 22, 1939.
Appeal — Granting new trial not final order or judgment, when — Amended Section 12223-2, General Code, unconstitutional.
CERTIFIED by the Court of Appeals of Franklin county.
Mr. Ralph J. Bartlett, prosecuting attorney, Mr. Henry L. Holden and Mr. Edmund B. Paxton, for appellant.
Mr. Arvin J. Alexander and Mr. Robert E. Gibbs, for appellee.
Harold Wright was found guilty by a jury in the Court of Common Pleas of Franklin county, Division of Domestic Relations, of being the father of a child by an unmarried female. He filed a motion for new trial and a motion for judgment notwithstanding the verdict. The latter was overruled but the motion for new trial was sustained.
The state appealed on questions of law to the Court of Appeals, which court overruled a motion to dismiss the appeal, finding that there was no abuse of discretion by the trial court in granting a motion for new trial, and that Section 12223-2, General Code (117 Ohio Laws, 615), was constitutional, and affirmed the judgment of the Court of Common Pleas.
Finding its judgment in conflict with that of the Court of Appeals of the First Appellate District in Fulton v. Madlener, 57 Ohio App. 345, 14 N.E.2d 27, and also with a judgment of the Court of Appeals of the Seventh Appellate District, the judges of the Court of Appeals of the Second Appellate District certified the record to this court for review and final determination.
This court having held the questioned provision of amended Section 12223-2, General Code, unconstitutional in the case of Hoffman v. Knollman, ante, 170, the judgment of the Court of Appeals is reversed and the cause is remanded to that court with instructions to dismiss the appeal and for further proceedings in accordance with law.
Judgment reversed.
WEYGANDT, C.J., DAY, ZIMMERMAN, WILLIAMS, MYERS, MATTHIAS and HART, JJ., concur.