Opinion
No. 6776
Decided April 8, 1947.
Appeal — Overruling motion for rehearing of motion to quash service — Not final order — Notice of appeal — May not be amended, when.
1. An order overruling a motion of plaintiff for rehearing of a motion to quash service of summons, which latter motion was sustained, does not constitute a final order.
2. Where a notice of appeal specifically recites that the appeal is taken "from the order of said court in the above entitled action, wherein, on the 16th day of January, 1947, this court overruled the application of said appellant for rehearing on motion to quash service of summons and in favor of * * * defendant," such notice may not be amended to make the appeal effective as to the order quashing the service of summons made on a previous and different date.
APPEAL: Court of Appeals for Hamilton county.
ON MOTION to dismiss.
Messrs. Cors, Scherer Hair, for appellant.
Messrs. Kunkel Kunkel, for appellee.
To a petition in an action filed on September 16, 1946, defendant interposed a motion to quash the summons and service thereon. On November 9, 1946, an entry sustaining the motion and quashing the summons was entered on the journal of the court. Within 10 days thereafter, plaintiff filed an application for rehearing on defendant's motion to quash. On January 16, 1947, an entry overruling the application for a rehearing on defendant's motion to quash was entered on the journal of the court.
The notice of appeal herein is as follows:
"Jimmie R. Cooke, by his attorneys, plaintiff in the above entitled action, and herein designated as appellant, hereby files in this court, notice of his intention to appeal from the order of said court in the above entitled action, wherein, on the 16th day of January, 1947, this court overruled the application of said appellant for rehearing on motion to quash service of summons and in favor of the New York, Chicago St. Louis Railroad Company, defendant in the above entitled action and herein designated as appellee.
"Said appeal to be made on questions of law."
The cause is now before this court on motion to dismiss the appeal, on the ground that the appeal is not from a final order.
If we treat the application for rehearing as equivalent to a motion for a new trial, under existing Section 12223-7, General Code, it serves only to toll the statute with reference to the time within which the appeal shall be perfected, and on the authority of Chandler Taylor Co. v. Southern Pacific Co., 104 Ohio St. 188, 135 N.E. 620, the overruling of such application is not a final order upon which to predicate an appeal, in the absence of an abuse of discretion, which is not claimed in this case. See, also, Morrison v. Baker, Exrx., 42 Ohio Law Abs., 349, 58 N.E.2d 711.
Further, the notice of appeal is specifically directed to the order of January 16, 1947, so that this court may not under the guise of amendment permitted by Section 12223-5, General Code, substitute an order of a different date as being within the intention of the notice of appeal. Malone v. Industrial Commission, 66 Ohio App. 505, 36 N.E.2d 52; Williams v. Braun, 65 Ohio App. 451, 30 N.E.2d 363.
The motion to dismiss the appeal is, therefore, sustained, the appeal is dismissed and the cause remanded.
Motion sustained.
MATTHEWS, P.J., and HILDEBRANT, J., concur in the syllabus, opinion and judgment.
I concur in the conclusion of my associates, for the reason that the "application for rehearing" filed by appellant can not be construed as a motion for a new trial under Section 11575, General Code, as amended, and applicable to actions filed after October 11, 1945, or as a motion to vacate a judgment under Section 11634, General Code.
The application is in the following terms:
"Now comes the plaintiff and moves the court for a rehearing on defendant's motion to quash service of summons for the following reasons:
"1. That the order of the court herein and the dismissal of plaintiff's petition are contrary to the law of the state of Ohio.
"2. That the court erred in entering an order for the defendant quashing service of summons, when said order should have been for the plaintiff overruling the motion to quash service of summons."
I do not wish to be placed in the position of holding that the overruling of a motion for new trial or motion to vacate a judgment in a proper case under the statute will not constitute a final order from which an appeal will lie. I do not consider that questions as to these latter situations are raised by the present record.