Parker v. Rose

Ohio Court of Appeals

Parker v. Rose

77 N.E.2d 499, 81 Ohio App. 216, 49 Ohio Law. Abs. 511, 37 Ohio Op. 25, 1947 Ohio App. LEXIS 648

CourtOhio Court of Appeals

DecidedJune 4, 1947

Docket4018

StatusPublished

This text of 77 N.E.2d 499 (Parker v. Rose) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Parker v. Rose, 77 N.E.2d 499, 81 Ohio App. 216, 49 Ohio Law. Abs. 511, 37 Ohio Op. 25, 1947 Ohio App. LEXIS 648 (Ohio Ct. App. 1947).

Pincite

Opinion

OPINION

By HORNBECK, J.

Appellant recovered a judgment in the Municipal Court of the City of Columbus, Ohio, against the appellee who appealed from the judgment to the Common Pleas Court. The notice of appeal was regular and it and the bill of exceptions were filed within time. Defendant failed to file assignments of error and *512 briefs within rule in the Common Pleas Court, and appellee there, appellant here, moved to dismiss the appeal, which was overruled. Appellant there, appellee here, moved the Court for leave to file the assignments of error and brief out of rule, which was sustained. Prom this order of the Common Pleas Court this appeal is noted, and thé parties have briefed the question presented. No motion has been filed to dismiss the appeal, but counsel for appellee here argues that there is no final order or judgment from which an appeal may be prosecuted.

This claim is well made. Manifestly, the order made was not a judgment which is pending determination on the appeal in the Common Pleas Court, nor is it,a final order, because it does not determine the action nor prevent a judgment.- Sec. 12223 GC. See also 2 O. Jur. 135; Longworth v Mullaly, 12 O. Dec. Rep. 366; The Knolwood Cemetery Co. v Cuyahoga County, et al., etc., 137 Oh St 388; Bankers Life Company v Waters, et al., 39 Oh Ap 343.

Inasmuch as appeals may be prosecuted to judgments or final orders only, and we have neither here, we cannot entertain this appeal and it will be dismissed.

WISEMAN, PJ, and MILLER, J, concur.

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OPINION

By HORNBECK, J.

Appellant recovered a judgment in the Municipal Court of the City of Columbus, Ohio, against the appellee who appealed from the judgment to the Common Pleas Court. The notice of appeal was regular and it and the bill of exceptions were filed within time. Defendant failed to file assignments of error and *512 briefs within rule in the Common Pleas Court, and appellee there, appellant here, moved to dismiss the appeal, which was overruled. Appellant there, appellee here, moved the Court for leave to file the assignments of error and brief out of rule, which was sustained. Prom this order of the Common Pleas Court this appeal is noted, and thé parties have briefed the question presented. No motion has been filed to dismiss the appeal, but counsel for appellee here argues that there is no final order or judgment from which an appeal may be prosecuted.

This claim is well made. Manifestly, the order made was not a judgment which is pending determination on the appeal in the Common Pleas Court, nor is it,a final order, because it does not determine the action nor prevent a judgment.- Sec. 12223 GC. See also 2 O. Jur. 135; Longworth v Mullaly, 12 O. Dec. Rep. 366; The Knolwood Cemetery Co. v Cuyahoga County, et al., etc., 137 Oh St 388; Bankers Life Company v Waters, et al., 39 Oh Ap 343.

Inasmuch as appeals may be prosecuted to judgments or final orders only, and we have neither here, we cannot entertain this appeal and it will be dismissed.

WISEMAN, PJ, and MILLER, J, concur.

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Bluebook (online)

77 N.E.2d 499, 81 Ohio App. 216, 49 Ohio Law. Abs. 511, 37 Ohio Op. 25, 1947 Ohio App. LEXIS 648, Counsel Stack Legal Research, https://law.counselstack.com/opinion/parker-v-rose-ohioctapp-1947.