Hardin v. American Guar. Co. ( 1927 )

OPINION OF COURT.

The following is taken, verbatim, from the opinion.

MIDDLETON. J.

It is apparent, we think, that the overruling of the motion to quash was not a judgment nor a final order such as is prescribed in 12247 and 12257 GC. It follows that this court is without jurisdiction to review the action in question of the lower court. In Arbuckle v. American Belting Co., 91 OS. 415, it is held that a judgment of the Court of Appeals under such conditions must be vacated and the action remanded to the trial court for further proceedings. In Canning Co. v. Weller, 9 Oh. Ap. 468, the facts involved in the Arbuckle case are stated and are very pertinent on the question of what constitutes a final order of judgment. However, in the case of Thatcher v. Watson, et, 51 OS. 561, it is expressly held that a motion to dismiss an appeal is not a final order upon which error may be prosecuted. This case was followed in Home Building & Realty Co. v. Clasberg et, 81 OS. 482, and in the case of Canning Co. v. Zappio, 80 OS. 458. The Thatcher case is referred to as stating the general rule.

There is no material difference between overruling a motion to dismiss an appeal and overruling a motion to quash service of summons. In both instances the action is permitted to remain on the docket for further proceedings which may or may not result in a judgment against the complainant.

We are constrained, therefore, to hold that the petition in error must be dismissed.

(Mauek, J., concurs. Sayre, PJ., not sitting.)