Moorman v. National Casualty Co.

75 N.E.2d 77, 48 Ohio Law. Abs. 447, 1947 Ohio App. LEXIS 858

Opinion

OPINION

By THE COURT:

Submitted on motion filed by defendant-appellee to dismiss the appeal, upon the ground that the court is without jurisdiction.

This is an appeal from the order of the Common Pleas Court reversing a judgment of the Municipal Court of Dayton in favor of the plaintiff-appellant. The pertinent part of the order of the Common Pleas Court is. as follows:

“The Court being of the opinion that the decision and judgment of said Municipal Court are not sustained by sufficient evidence and are contrary to law, and that said Municipal Court erred in overruling the motion of the defendant-appellant for a new trial.

It is, therefore, ordered and adjudged that the judgment of said Municipal Court be reversed and held for naught, that defendant-appellant recover the costs of his appeal from plaintiff-appellee, and that a special mandate issue remanding this cause to. said Municipal Court for further proceedings,, according to law.”

Defendant-appellee contends that the order of the Common Pleas Court was not a final order, and, therefore, not appealable. In support of this contention the case of Hoffman v Knollman, 135 Oh St 170, is cited, which holds—

“The amendment of §12223-2 GC, (117 O. Laws 615), effective August 23, 1937, providing that ‘vacating or setting aside a general verdict of a jury and ordering a new trial, is a final order,’ would, if given effect, enlarge the jurisdiction of the Court of Appeals, and is,'therefore, in conflict with Section 6, Article IV, of the Constitution.”

In brief, the Court held that an appeal may not be taken from the order of the trial court sustaining a motion for a new trial. A different situation prevails in the instant case. The order appealed from is not an order sustaining a motion for a new, trial, but an order'of the Common Pleas Court reversing a "judgment of the Municipal Court of Dayton. This order affected a substantial right of the plaintiff-appellant, determined the action and prevented a judgment. It was a final order from which an appeal may be taken.

The motion to dismiss is overruled.

WISEMAN, PJ, MILLER and HORNBECK, JJ, concur.