State ex rel. Headley v. Industrial Commission , 39 Ohio Law. Abs. 558 ( 1943 )

OPINION

BY THE COURT:

The above entitled cause is now being determined on relatorappellee’s motion to dismiss the appeal on the claimed ground that the order appealed from is not a final order.

Briefs for and contra are submitted.

The original action filed in the Court of Common Pleas was one in mandamus, praying that the respondent Industrial Commission be required to pass upon relator’s application and determine whether or not relator’s disability was the result of an injury which occurred in the course of or arose out of his employment, etc.

It appears that between the time of the filing of the petition and the service of summons, the commission had voluntarily performed the things sought to be ordered, and as a result the trial court found the question to be moot, dismissed the petition and ordered a payment of attorney fees to counsel for relator. The amount of the fees allowed was $250.00. Respondent filed notice of appeal on questions of law. It is admitted that the sole question to be determined on the appeal is whether or not the court was in error in allowing attorney fees.

We have no difficulty in determining that this is a final order. While it may be true that the primary relief sought in the petition was not passed upon, yet there was a definite finding and judgment in favor of the relator in the sum of $250.00. Certainly respondent should have the right to have this judgment reviewed, and unless the right of appeal on question of law is appropriate, there can be no review at all.

Motion to dismiss will be denied, and costs in this court adjudged against the appellee.

BARNES, P.J., HORNBECK and GEIGER, JJ„ concur.