In Re Will of Thomas , 84 Ohio App. 30 ( 1948 )

This is a motion submitted by Harry B. Holmes, trustee, and Ray G. Thomas, Clara J. Mann, Millie K. Lester and Margaret Cassidy, legatees and remaindermen, appellees herein, for an order dismissing the appeal herein, for the reason that the order appealed from is not a final order. In the event the foregoing motion should be overruled, these appellees move for an order dismissing the appeal on questions of law and fact and retaining it on questions of law only. The order appealed from is an order of the Probate Court making findings for and allowances to Harry B. Holmes for services for the year 1947 as a fiduciary and general manager of the trust's main business and also findings for and allowances to certain others for services to the trust.

The record discloses that no notice of the hearing on the application was served on any of the beneficiaries under the trust. Section 10501-56, General Code, affords an appeal on questions of law from any final order of the Probate Court "in the manner and within the time provided by law for the prosecution of such appeals from the Court of Common Pleas."

Section 12223-3, General Code, provides for the review of "every final order, judgment or decree of a court * * * unless otherwise provided by law."

A final order is defined in Section 12223-2, General Code, as "an order affecting a substantial right in an action when in effect it determines the action and prevents a judgment, or an order affecting a substantial right made in a special proceeding, or upon a summary application in an action after judgment."

After quoting the above definition of a final order, the Court of Appeals for Hamilton county, in Ryan v. Kroger Grocery Baking Co., 56 Ohio App. 469, 11 N.E.2d 204, said:

"* * * this court's jurisdiction is limited to reviewing such orders of the Common Pleas Court as finally determine the rights of the parties in actions in so far at least as the pending proceeding is concerned. This court affirms, reverses, or modifies such orders depending upon the state of the record. The Constitution does not contemplate that the court will entertain an appeal to decide a moot, abstract, or academic dispute. The order that is a sufficient predicate for an appeal must relate to the real issue or dispute between the parties, not merely to a collateral issue raised in the course of the proceeding.

* * * * *

"The distinction between an interlocutory order, from which no appeal may be taken, and a judgment or final order, from which an appeal may be taken, is clearly stated in 2 American Jurisprudence, 860 et seq. At page 862, it is said:

"``In other words, a final judgment is one which operates to divest some right in such a manner as to put it beyond the power of the court making the order to place the parties in their original condition after the expiration of the term; that is, it must put the case out of court, and must be final in all matters within the pleadings.'"

Upon analyzing the Appellate Procedure Act, it will be seen that although the General Assembly has empowered the Courts of Appeals to review every final order, judgment or decree, it has not empowered the appellate court to review interlocutory orders. It is the whole cause that is appealed. No provision is made for a partial appeal and a remand to the trial court upon determination of the specific question or issue. The order under consideration was neither an order determining an action and preventing judgment nor an order in a special proceeding. The Probate Code provides a right of review in the Probate Court. Section 10506-34 et seq., General Code, requires that the trustee file an account of his expenditures to which exceptions are authorized. Section 10506-39, General Code, provides for a hearing on the account and the exceptions. Only after the Probate Court has thus passed on the account under favor of Sections 10506-38 and 10506-39 is there finality and a determination of the subject under consideration.

The instant order was no more special than any other order which the Probate Court is authorized to make under authority of the Probate Code. The order fixing the compensation for the services of the others is of the same character as that making allowance to Harry B. Holmes.

In the case of In re Estate of Hamilton, 67 Ohio App. 242,36 N.E.2d 439, in discussing what constitutes a final order, Judge Guernsey said at page 246:

"It must be presumed that the words ``order, decision, or judgment' as used in the last-quoted clause of Section 10501-56, General Code, as amended, in connection with the subject matter of appeal, are used in their usual and ordinary sense in connection with the subject matter, and, it not being expressly otherwise provided, comprehend only such orders, decisions and judgments as are final in their nature. This interpretation of these words as used, is in accord with the long established practice in Ohio under which only orders final in their nature are reviewable, and it must be presumed that if the Legislature had intended to change this practice and make interlocutory orders the subject of review it would have unequivocally so stated."

In the case of Equitable Securities Co. v. McDonald, 14 Ohio App. 56, the Court of Appeals for Franklin county said:

"A final order or judgment under the statute is one disposing of the whole case or some separate and distinct branch thereof. * * * Jurisdiction of the appellate court is now provided for by Section 6, Article IV of the Constitution, which gives jurisdiction to review ``judgments' of a Court of Common Pleas, and so forth. * * *

"The general policy of the law is opposed to separate reviews upon interlocutory orders. This is not only a policy of Ohio but seems to be a general policy throughout the American states. A contrary policy would undoubtedly tend greatly to prolong litigation."

A decree or order which leaves further proceedings necessary before the rights of the parties can be determined is an interlocutory order and not a final order. Towner v. Wells,8 Ohio, 136; Kelley v. Stanbery, 13 Ohio, 408; Teaff v. Hewitt,1 Ohio St. 511, 59 Am. Dec., 634; and Kerosene Lamp Heater Co. v.Monitor Oil Stove Co., 41 Ohio St. 287.

We are, therefore, of the opinion that the order appealed from is an interlocutory order and not a final order.

The second branch of the motion is in the alternative form and, therefore, requires no further consideration.

The motion to dismiss is sustained.

Motion sustained.

WISEMAN, P.J., MILLER and HORNBECK, JJ., concur.