Campbell v. Prudential Ins. Co. of America

126 N.E.2d 148, 97 Ohio App. 401, 56 Ohio Op. 155, 1954 Ohio App. LEXIS 713

• Court: Ohio Court of Appeals
• Decided: September 17, 1954
• Docket: 724
• Status: Published

Opinion

Wiseman, P. J.

This matter is submitted on the motion of appellees to dismiss the appeal on the ground that the order appealed from is not a final order.

To the amended petition of the plaintiffs, the appel lant, one of the defendants, filed a special demurrer which was overruled. The last paragraph in the entry overruling the demurrer is as follows:

“In the alternative of the defendant, Virginia P. Campbell, desiring not to plead further, then said defendant, Virginia P. Campbell, is hereby granted twenty days from the journalization of this entry in which to plead. ’ ’

There is nothing in the record which shows appellants’ desire not to further plead; neither has judgment been rendered against appellant. Until this is done there is no final appealable order.

In 2 Ohio Jurisprudence, 188, Section 98, the rule is stated:

“It is well settled that there is no final order which can be made the basis of an appeal on questions of law, formerly error proceedings, where a cause has proceeded no further than the mere overruling or sustaining of a demurrer to a pleading of one side or the other, since such an order, without more, leaves the action still pending in the lower court. This rule has been applied in many instances to an order overruling a demurrer to a petition where the defendant answers or has leave to answer. ’ ’

In our judgment the order appealed from is not a final order within the meaning of Section 2505.02, Revised Code.

The motion to dismiss the appeal is sustained.

Motion sustained.

Miller and Hornbeck, JJ., concur.