Baker v. Mohler , 63 Ohio Law. Abs. 65 ( 1952 )

OPINION

By THE COURT:

This is an appeal from an order of the Common Pleas Court sustaining a demurrer to plaintiffs’ petition.

The demurrer was upon one of the statutory grounds of §11309 GC:

“That it appears upon the face of the petition that there is another action pending between the parties hereto for the same cause.”

The entry from which the appeal is prosecuted recites only that the Court sustains the demurrer. There is no election to plead further nor is there any dismissal of plaintiffs’ petition. There is, then no final order or judgment from which an appeal can be prosecuted. Holbrook v. Connely, 6 Oh St 199; Hendrickson et al v. Galbreath, 27 Abs 422; Lyman v. Welfare Finance Corp., 39 Abs 55; Davis v. Columbia Gas & Electric Corp., 34 Abs 473; Liesman, Admr. v. Brookville, 32 Abs 343; Robbins, et al v. City National Bank & Trust Co., 29 Abs 647.

The Court, therefore, on its own motion, dismisses the appeal.

Decided May 3, 1952. Decided May 29, 1952.

For the benefit of counsel although what we say is purely obiter dictum, it is our judgment that the demurrer was properly sustained. There are some technical aspects of the ground of the demurrer as related to the facts pleaded which makes the question somewhat difficult. However, it is apparent that the parties in the instant action are the same as in the former action and it is also patent that if the plaintiffs are entitled to the relief sought they can assert their right and receive their remedy in the action on the note and to foreclose.

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

ON ENTRY OF DISMISSAL FOLLOWING APPEAL

No. 2154.

OPINION

By THE COURT:

Our attention is directed to an entry of dismissal in this case following the first notice of appeal. This is a final order which requires an adjudication of the error assigned.

We expressed our opinion on the question presented in our former decision which we now adopt. No error to the prejudice of appellant was committed by the sustaining of the demurrer to plaintiff’s petition.

The judgment will be affirmed.

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