Opinion
No. 6591
Decided February 4, 1946.
Appeal — From justice of peace to Common Pleas Court — Order of reversal and retention for trial on merits — Section 12223-26, General Code — Not final order appealable to Court of Appeals.
Where the Court of Common Pleas in an appeal on questions of law reverses a judgment of a court of a justice of the peace in an action for forcible entry and detainer, and retains the case for trial on the merits, as provided in Section 12223-26, General Code, an entry incorporating such action of the Court of Common Pleas does not present a judgment or final order furnishing a predicate for appeal to this court.
APPEAL: Court of Appeals for Hamilton county.
Mr. Fred W. Murphy and Mr. William C. Schuch, for appellees.
Messrs. Ratterman, Cowell Fletcher, for appellant.
In a forcible entry and detainer action before a justice of the peace who rendered judgment of restitution, an appeal on questions of law was taken to the Court of Common Pleas, where the judgment was reversed. The appeal here on questions of law attacks the legality of the appeal to the Court of Common Pleas, it being claimed there was a failure to file the notice of appeal required by law.
This court has no jurisdiction to consider the errors complained of, for the reason that under the statute no final order has been entered in the court below. Section 12223-26, General Code, provides:
"Except when the reversal is because the justice has no jurisdiction of the appellant or of the subject of the action, the cause shall be retained by the court for trial and final judgment."
The judgment of reversal, not being for lack of jurisdiction, is, therefore, not a final order, and the cause must be retained for trial by the court below and proceed to judgment before an appeal may lie here. McLean v. Johnson, 20 C.C. (N.S.), 503, 31 C.D., 403; Kelley v. Hunter, 12 Ohio, 216; Longworth v. Sturges, 6 Ohio St. 143; Ry. Co. v. Bailey, 39 Ohio St. 170; Bradley v. Wacker, 13 C.C., 530, 7 C.D., 565.
The appeal is dismissed.
Appeal dismissed.
HILDEBRANT, P.J., MATTHEWS and ROSS, JJ., concur in the syllabus, opinion and judgment.