Opinion
No. 36778
Decided April 19, 1961.
Appeal — Final order — Sustaining demurrer to one defense of answer — Not final appealable order, when — No judgment taken against defendant — No refusal to plead further.
APPEAL from the Court of Appeals for Franklin County.
Automobiles operated by plaintiff and defendant collided at a highway intersection, resulting in personal injuries to plaintiff and the death of her father who was riding with her at the time. Plaintiff, the sole beneficiary of her father, brought an action as administratrix of his estate against defendant to recover for the alleged wrongful death of her father, based on the claimed negligence of defendant. Defendant filed an answer denying negligence on her part and alleging negligence of plaintiff proximately causing the collision. The case was tried to a jury, resulting in a general verdict and judgment for defendant. The Court of Appeals affirmed the judgment and no appeal was taken therefrom.
The instant action was brought by the daughter as an individual against the same defendant to recover damages for personal injuries which she claims to have suffered as a result of the same automobile accident.
Defendant filed an amended answer to the petition in this action, and as a first defense denies negligence on her part and alleges that plaintiff "was guilty of negligence, which negligence was the direct and proximate cause or was the direct and proximate contributing cause" of the accident. As a second defense, defendant pleads as res judicata the judgment for defendant in the prior action.
Plaintiff filed a motion to strike the second defense from the amended answer. The court considered the motion as a demurrer and sustained it.
The defendant appealed to the Court of Appeals from the order of the trial court sustaining the demurrer to the second defense of the answer. The plaintiff moved for an order dismissing the appeal for the reasons (1) that the order of the Court of Common Pleas appealed from is not a final order and not appealable, and (2) that "the judgment of the court in sustaining the motion by demurrer is not against the law."
The Court of Appeals sustained the first branch of the motion to dismiss and remanded the cause to the trial court for further proceedings and overruled the second branch of the motion.
The allowance of a motion to certify the record brings the cause to this court for review.
Messrs. Kilbourne Twynham, for appellee.
Messrs. Wiles, Doucher, Tressler Koons, for appellant.
The defendant did not permit judgment to be taken against her or refuse to plead further. The sustaining of the motion to strike a part of the amended answer, considering such motion as a demurrer, leaves the cause still pending in the trial court. The order of the trial court, considering the motion to strike the second defense from the amended answer as a demurrer and sustaining it, is not a final order from which an appeal may be taken. Holbrook, Admr., v. Connelly, 6 Ohio St. 199.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS and O'NEILL, JJ., concur.
HERBERT, J., not participating.