Meyer v. Daniel

67 N.E.2d 629, 78 Ohio App. 51, 45 Ohio Law. Abs. 257, 33 Ohio Op. 402, 1945 Ohio App. LEXIS 521

• Court: Ohio Court of Appeals
• Decided: December 14, 1945
• Docket: 6617
• Status: Published

Opinion

OPINION

By ROSS, J.;

Motion to dismiss the appeal from the Court of Common Pleas of Hamilton county, on the ground that no final order was entered in that court is here considered.

Shortly after a reply was filed and before the case stood for trial, a motion for judgment on the pleadings was filed by the plaintiff. This motion was overruled. Thereafter, the court sua sponte struck certain matters from the plaintiff’s reply and the court granted plaintiff’s motion to strike the defendant’s motion to strike from the reply.

Plaintiff’s motion to strike from the files defendant’s motion to strike from the reply was filed after plaintiff’s motion for judgment on the pleadings.

This Court has consistently held that the action of a trial court in overruling a motion for judgment on the pleadings lacks the finality required to give such action the qualifications of a judgment constituting it a predicate for appeal to this Court. Harig Co. v City of Cincinnati, 61 Oh App., 314. The petition in the instant action was filed March 9, 1945. There is nothing in the changes either in the Constitution or statutes which requires in our opinion a different conclusion.

We, however, find our conclusion in conflict with that reached by the Court of Appeals for Mahoning County, in Marietta v Nichol, 72 Oh App., 387, and for this reason, the case will be certified to the Supreme Court.

Entries may be presented accordingly, to-wit: dismissing the appeal and certification of this cause to the Supreme Court.

HILDEBRANT, P. J., MATTHEWS & ROSS, J. J., concur.