Opinion
No. 7958
Decided September 27, 1954.
Appeal — Overruling motion to vacate temporary restraining order — Not final appealable order, when.
The order of a trial court overruling a motion to vacate a temporary restraining order, where the ultimate relief sought is an injunction against a continuing trespass upon real estate, is not a final order and no appeal lies therefrom.
APPEAL: Court of Appeals for Hamilton County.
Mr. Harvey B. Woods, for appellee.
Messrs. Metzger Davis, for appellants.
This cause comes before the court upon the appellee's motion to dismiss the appeal and upon appellants' motion to suspend the temporary restraining order from the granting of which and from the order of the court overruling the motion to vacate it, this appeal was taken.
An examination of the petition in this case discloses that the ultimate relief sought is an injunction, or restraining order, against a continuing trespass upon real estate and, as an incident thereto, damages for the trespass already committed.
It is apparent that this temporary restraining order restrains the defendants temporarily from doing the very things that the plaintiff seeks to have them enjoined from doing by the final decree in this case. It is, therefore, not a final order and no appeal lies therefrom. 2 Ohio Jurisprudence (2d), 628, Section 53.
The motion to dismiss is, therefore, sustained.
Under these circumstances, the court has no jurisdiction to pass upon the motion to suspend the temporary restraining order. Its disposition is included in the dismissal of the appeal.
Appeal dismissed.
MATTHEWS, P. J., HILDEBRANT and ROSS, JJ., concur.