Summary
concluding that an appeals court's erroneous assertion of jurisdiction over an interlocutory order did not affect the jurisdiction of the trial court
Summary of this case from Oliver v. KrutowskyOpinion
No. 88-1791
Submitted December 2, 1988 —
Decided December 9, 1988.
Prohibition — Denial of motion to consolidate is not a final appealable order.
IN PROHIBITION.
Relators, Richard Eberling and Buford Henderson, were indicted by the Cuyahoga County Grand Jury on multiple felony counts. Their case was assigned to respondent, Donald C. Nugent, a judge of the Court of Common Pleas of Cuyahoga County.
On August 18, 1988, relators filed a motion to consolidate their case with that of two other defendants. The motion was denied. Relators appealed the denial of their motion to the Court of Appeals for Cuyahoga County. That court dismissed their appeals, sua sponte, for failure to file timely notices of appeal. Each relator then filed a motion for reconsideration. The court of appeals granted these motions on November 4, 1988, vacating its previous judgments.
Despite the pendency of relators' appeals, the trial court has continued to exercise jurisdiction over their case, holding a pretrial on October 14, 1988 and scheduling trial for December 12, 1988. Relators seek a writ of prohibition to prevent respondent from exercising further jurisdiction over their case, pending the court of appeals' disposition of their appeals.
Daniel Gaul and John M. McDermott, for relators.
John T. Corrigan, prosecuting attorney, Christa D. Brunst and George Rukovena, for respondent.
Relators maintain that the trial court is without jurisdiction to proceed to trial until the court of appeals rules on the denial of their motion to consolidate. However, the pendency of relators' interlocutory appeals does not deprive the trial court of jurisdiction over their case, because the court of appeals itself lacks jurisdiction over those appeals.
A court of appeals has appellate jurisdiction to review judgments or final orders of inferior courts. Section 3(B)( 2), Article IV, Ohio Constitution. Clearly, the denial of a motion to consolidate is not a judgment. See State v. Hunt (1976), 47 Ohio St.2d 170, 174, 1 O.O. 3d 99, 101, 351 N.E.2d 106, 109. Nor, in our view, is it a final order.
r.C. 2505.02, in pertinent part, defines a "final order" as "* * * an order that affects a substantial right made in a special proceeding * * *." We have held that "a prime determinant of whether a particular order is one made in a special proceeding is the practicability of appeal after final judgment." Bernbaum v. Silverstein (1980), 62 Ohio St.2d 445, 447, 16 O.O. 3d 461, 463, 406 N.E.2d 532, 534. If relators are prejudiced by the denial of their motion, and such prejudice results in their convictions, appeal after conviction is clearly practicable. Indeed, we considered such an appeal this very term. See State v. Brown (1988), 38 Ohio St.3d 305, 308-309, 528 N.E.2d 523, 531.
We hold that the trial court's denial of the motion to consolidate was not a final appealable order. Therefore, the court of appeals had no jurisdiction to consider the issues raised in the appeals, and its erroneous assertion of jurisdiction did not affect the jurisdiction of the trial court. Accordingly, we deny the writ.
Writ denied.
MOYER, C.J., SWEENEY, LOCHER, HOLMES, DOUGLAS and H. BROWN, JJ., concur.
WRIGHT, J., concurs in judgment only.