Cleveland Trust Co. v. Cincinnati, Dayton & Toledo Traction Co. , 9 Ohio App. 191 ( 1917 )

Jones, P. J.

Just what is a final order or judgment from which appeal lies has always been a •difficult question, and since the change in the 'courts and their jurisdictions, effected by the amendments of the constitution in 1912, that difficulty has not been made less.

Under the law as it stood before this change it was held that a mere order confirming a sale, being administrative in its character, was not appeal-able. Reeves et al. v. Skenett, Jr., et al., 13 Ohio St., 574, and McRoberts v. Lockwood et al., 49 Ohio St., 374.

Section 12224, General Code, which purports to provide for appeals, has been held unconstitutional in Wagner v. Armstrong et al., 93 Ohio St., 443, and the jurisdiction of the • court of appeals is wholly fixed — as held in The Cincinnati Polyclinic v. Batch, 92 Ohio St., 415 — by Section 6, Article IV of the new Constitution, which gives it “appellate jurisdiction in the trial of chancery cases.” The word “trial” does not mean every interlocutory order or step taken in the court as the case proceeds, • but its meaning is well stated in the words of the supreme court in Thompson et al. v. Denton, 95 Ohio St., 333, at page 341 of the opinion:

“We hold that the term ‘trial’ as used in the constitution is broad enough to include any judgment, final order or decree, not interlocutory in its nature, affecting the substantial rights of a party to a chancery suit.”

To be sure, the property in this case is disposed of by the confirmation of the sale, so far as the complaining parties are concerned, except as to their rights to liens upon the fund received as proceeds of the sale, which was by that order reserved for future consideration of the court. But these rights were not concluded by the order of confirmation from which the appeal was taken. If appellants 'had been parties at the time of the decree of foreclosure 'and order for sale, that would have been the judgment which would have substantially affected their rights, from which they should have appealed. But having 'become parties •to the case after that time, they raised the question of first compelling The Cincinnati, Dayton & Toledo Traction Company to pursue their lessee, The Ohio Traction Company, for unpaid rent due, and enforce its payment, instead of selling claims for unpaid rent with the railroad itself on foreclosure. An order was then made by the court refusing to set aside the decree and order for sale and to grant the motion for this relief. This was undoubtedly an order affecting their substantial rights, and inasmuch as they came into the case •too late to seek a review of the decree and order for sale at the time it was made, this order refusing to set it aside should have been made the basis of error proceedings or appeal, rather than the ■decree confirming the sale.

In our opinion the order confirming the sale is interlocutory in its nature, and the motion to dismiss the appeal must be granted.

Motion to dismiss appeal allowed.

Gorman, J., concurs. Hamilton, J., not participating.