Willhoit v. Flowers

A preliminary examination of the record in this case discloses that the notice of appeal is directed to an order of the Court of Common Pleas of Montgomery County, which provides, in toto, as follows:

"This cause came on to be heard on a demurrer filed by the defendant-administrator of the Bureau of Workmen's Compensation, for the reason that plaintiff's petition failed to state an accidental occurrence which is compensable under the Workmen's Compensation Act.

"The court being fully advised in the premises, and after due consideration given, finds said demurrer to be well taken and the same is accordingly sustained."

This is not a final order which can be made the basis of an appeal on questions of law. Section 2505.02, Revised Code. Where a cause has proceeded no further than the mere overruling or sustaining of a demurrer to a pleading, the action is still pending in the trial court. See 2 Ohio Jurisprudence 2d 618, Section 47, and the numerous cases cited in support of the text.

Admittedly, we have given some thought to overlooking this dormant procedural defect in the present record, but it would be unnecessarily hazardous to send the parties to this action on the same expensive and time-consuming excursion experienced by the parties in the case of Betz v.Industrial Commission, 139 Ohio St. 624, which arose under facts identical to those presented herein.

In that case, the notice of appeal to the Court of Appeals was directed to an order sustaining a demurrer to a petition filed in a workmen's compensation case, and the Court of Appeals entered judgment reversing the action of the Court of Common Pleas in sustaining the demurrer.

Thereafter, a motion to certify was allowed and the case was submitted to the Supreme Court upon its merits. While lodged in the Supreme Court, it was discovered that the record did not contain a final order in the Court of Common Pleas. The judgment of the Court of Appeals was reversed, and the cause was remanded to that court with directions to vacate its judgment and to remand the cause to the trial court for further proceedings.

Upon the authority of the Betz case, the present appeal will be dismissed, and the cause remanded to the Court of Common Pleas for further proceedings according to law.

Appeal dismissed.

CRAWFORD, P. J., and SHERER, J., concur.