Yendes v. Shaw

78 N.E.2d 696, 81 Ohio App. 232, 50 Ohio Law. Abs. 31, 37 Ohio Op. 55, 1947 Ohio App. LEXIS 617

Opinion

OPINION

By THE COURT

Submitted on motion to dismiss the appeal on the ground that the order appealed from is not a final order.

The defendant-appellant filed three separate defenses and a cross petition. The trial court sustained a demurrer to the second and third defenses and the cross petition. The defendant-appellant not desiring to plead further, the second and third defenses and the cross petition were dismissed.

An order sustaining a demurrer without dismissing the action is not a final order, as the Court may grant leave to amend: National Guarantee & Finance Company v Russell; 25 Abs 483. However, an order sustaining a demurrer to the second and third defenses and cross petition, and dismissing said defenses and cross-petition, is a final order within the provisions of §12223-2 GC from which an appeal may be taken: Latham v Ransome Concrete Machinery Co., 13 Abs 63; More-head v Central Trust Co., 54 Oh Ap 9.

The motion to dismiss the appeal is overruled.

WISEMAN, PJ, MILLER and HORNBECK, JJ, concur.