Rush v. Rush

29 Ohio St. 440

• Court: Ohio Supreme Court
• Decided: December 15, 1876
• Status: Published

Opinion

By the Court.

1. An action under the code for partition in which equitable relief is to be administered between the parties in order to effect a partition of the estate is appealable.

2. Where a suit which is appealable is disposed of in the court of common pleas on a demurrer to the petition, and an appeal taken by the plaintiff to the district court, the appeal can not be dismissed on the ground that the petition does not show a cause of action. The appellant has the right to have the judgment of the appellate court on the demurrer to his petition; and if the judgment is against him to ask leave to amend.

3. Where it appears from the journal entries of the court, in such suit, that the demurrer tp the petition was sustained, and the “petition dismissed,” {he presumption is that the dismissal was by the court, and not the voluntary act of the plaintiff.

4. The judgment of dismissal in such ease is a final judgment from which an appeal may be taken.

Leave granted, judgment of the district court dismissing the appeal reversed, and cause remanded.