Eveland v. Sherman

9 Ohio N.P. (n.s.) 617

• Court: Court of Common Pleas of Ohio, Hamilton County
• Decided: February 15, 1910
• Status: Published

Opinion

Dickson, J.

Motion by the defendants, the Letchers, to dismiss the .appeal from the justice for the reason, among others, that this is an appeal only from the judgment of dismissal in favor of the Letchers.

From the transcript it appears that a partnership, the plaintiff, brought suit before a justice of the peace against three defendants for a funeral bill; that at the trial the justice, on the evidence offered, rendered judgment in a certain sum of money against one of the defendants and dismissed the remaining defendants; that the plaintiff, desiring to appeal from the justice’s judgment dismissing two of the defendants, entered into an undertaking to the satisfaction of the justice in terms according to law, and that this cause is docketed for further proceedings here.

The two defendants who had been dismissed below now move to dismiss the appeal, for the reason that the judgment against them was that of a dismissal, and that the plaintiff had no right to appeal against them alone.

The court is of the opinion that the right of appeal existing, the plaintiff had a right to appeal as against the judgment of dismissal. Such a judgment after the hearing of a case on the merits is a final entry—a final judgment; that the appeal having been perfected by a bond and the filing of the transcript, the judgment before the justice was vacated, and the case stands for trial in this court the same as if instituted here; and all the parties are here.

If there be a defect in the bond, or the security be for any reason insufficient, such defects can be cured by a motion to require additional security.

Motion overruled.