Vockell v. Selmeier

68 N.E.2d 129, 77 Ohio App. 401, 46 Ohio Law. Abs. 272, 33 Ohio Op. 279, 1946 Ohio App. LEXIS 629

• Court: Ohio Court of Appeals
• Decided: February 4, 1946
• Docket: 6591
• Status: Published

Opinion

OPINION

By HILDEBRANT, P. J.

In a forcible entry and detainer suit before a justice of. the peace, who rendered judgment' of restitution, appeal was had on questions of law to the Court of Common Pleas, where the judgment was reversed. Appeal here on questions of law attacks the legality of the appeal to the Court of Common Pleas, claiming a failure to file the notice of appeal required by law.

This Court has no jurisdiction to consider the errors complained of, for the reason that under the statute no final order has been entered in the court below. Sec. 12223-26 GC, provides:

“Except when the reversal is because the justice has no jurisdiction of the appellant or of the subject of the action, the cause shall be retained by the court for trial and final judgment.”

The judgment of reversal, not being for lack of jurisdiction is, therefore, not the final order, but the cause must be retained for trial by the court below and proceed to judgment before the appeal lies here. McLean v. Johnson, 20 O. C. C. (n. s.) 803; Kelly v. Hunter, 12 Ohio 216; Longworth. v. Sturges, 6 Ohio St. 143; Ry Co. v. Barley, 39 Ohio St. 170; Bradley v. Walker, 13 C. C. 530.

The cause is dismissed.

HILDEBRANT, PJ, MATTHEWS & ROSS, JJ., concur in syllabus, opinion and judgment.