Tate v. Michael

129 N.E.2d 83, 98 Ohio App. 269, 57 Ohio Op. 290, 1954 Ohio App. LEXIS 651

Opinion

Per Curiam.

This cause comes before the court upon the appellee’s motion to dismiss the appeal and upon appellants’ motion to suspend the temporary restraining order from the granting of which and from the order of the court overruling the motion to vacate it, this appeal was taken.

An examination of the petition in this case discloses that the ultimate relief sought is an injunction, or restraining order, against a continuing trespass upon real estate and, as an incident thereto, damages for the trespass already committed.

It is apparent that this temporary restraining order restrains the defendants temporarily from doing the very things that the plaintiff seeks to have them enjoined from doing, by the final decree in this case. It is, therefore, not a final order and nó appeal lies therefrom. 2 Ohio Jurisprudence (2d), 628, Section 53.

The motion to dismiss is, therefore, sustained.

Under these circumstances, the court has no jurisdiction to pass upon the motion to suspend the temporary restraining order. Its disposition is included in the dismissal of the appeal.

Appeal dismissed.'

Matthews, P. J., Hildebrant and Ross, JJ., concur.