State v. Jacobs

32 N.E.2d 574, 66 Ohio App. 151, 33 Ohio Law. Abs. 172

Opinions

OPINION

By WASHBURN, PJ.

We are not called upon to pass upon the merits of the controversy presented by the record in this case, nor are we called upon to say anything in refer-' ence to the procedure by which the con troversy was presented to.the Court of Common Pleas.

Such facts as we may state are stated merely for the purpose of determining the question now before us.

All that is before us at this time for determination is the question whether the order which the Common Pleas Court made is a final order within the meaning of our statutes, and may therefore be reviewed on appeal on questions of law.

A gambling place was conducted by Stanley Sharkey, for and on behalf of Max Jacobs. The place where the gambling was conducted was raided by the sheriff without a search warrant, and certain articles of personal property, and certain money, which latter was in a bag in the place, were seized by the sheriff.

Stanley Sharkey was taken to the jail as a prisoner, and, upon search being made of his person, a considerable amount of money, together with a wrist watch, a comb and a key, was found, which was also seized by the sheriff, and all of the property seized by the sheriff was kept at the jail, to be used as evidence in the case against Max Jacobs and Louis Jacobs, who were thereafter indicted. Sharkey remained in jail for several days.

Thereafter the parties indicted pleaded guilty, and were sentenced to pay fines by the Common Pleas Court; and, at the conclusion of the journal entry sentencing the defendants, the court entered the following: “This case is set for hearing on Thursday, June 29, 1939, at 3 o’clock p. m., with reference to the disposition of the seized property herein.”

At the appointed time, the parties claiming to be the owners of said property, which, besides the money and other property aforementioned, consisted of an adding machine, telephones and head sets, racing forms and blanks, wall boards, ruled and lettered for racing, an electric fan, tables, stands, stools, a bench, a loud speaker, an electric clock and an electric grill, appeared before the court. The prosecuting attorney, being requested by the court, was also present.

No written application for return of the property had then been filed, but the case proceeded, with the understanding that such an application should be filed, which was later done by Jacobs, who claimed to own the adding machine, the electric fan, the tables, stools and bench, the electric clock, and the money, amounting to $104.40, which was taken from a bag or other container at the place of business, and the money, amounting to $388, which was taken at the jail from the person of Sharkey, the agent of Max Jacobs. , .

A hearing was . had, and the court ordered the sheriff and his deputies to forthwith destroy certain of the property, and to deliver to Stanley Sharkey $5 of the money taken from his person, and the balance of the money in the sheriff’s possession, less the costs of the hearing on the application for the return of the property, was ordered paid to Max Jacobs, and certain of the other articles of personal property were ordered turned over to Max Jacobs.

The prosecuting attorney has filed a notice of appeal to this court on questions of law, and the case was docketed in this court; and a bill of exceptions, taken on the hearing of the application, has been duly filed.

A motion has been filed by appellee Max Jacobs, for an order dismissing the appeal, for the reason that the “appeal is from an interlocutory order and is not appealable.”

After a consideration of the briefs of the parties and the authorities relative to the question involved, we are of the opinion and hold that the order directing the sheriff in reference to the disposition of the seized property is not an interlocutory order, but one made “upon a summary application in an action after judgment,” and therefore a final order as defined in §12333-3, GC.

The motion to dismiss the appeal will therefore be overruled.

Motion overruled.

DOYLE & STEVENS, JJ., concur.

Decided Mar 29, 1940