Opinion
Decided January 5, 1940.
Appeal — Final order — Overruling motion to dismiss petition not reviewable final order.
An order of a trial court overruling a motion to dismiss a petition does not determine the action or prevent final judgment and is not a reviewable final order.
APPEAL: Court of Appeals for Franklin county.
Mr. Virgil P. Cline, for appellee.
Mr. Horace S. Kerr, for appellant.
This matter is before this court upon a motion of the plaintiff, appellee herein, to dismiss the appeal by the defendant, appellant herein, on the ground that such appeal is not from any judgment or final order of the Court of Common Pleas and that, therefore, this court has no jurisdiction to entertain the appeal.
The facts necessary for the consideration of the matter may be briefly stated. In 1936, a prosecution was instituted against the plaintiff for forgery based upon the proper preliminary affidavits. The grand jury returned a "no bill" to the indictment. The plaintiff thereupon brought an action for false arrest against the defendant and subsequent to the filing of the plaintiff's petition and prior to the trial, an indictment was returned against the plaintiff for forgery. Prior to the civil trial, the court considered the effect of the pending indictment and concluded that the question raised should be determined on the trial of the case and the case being then submitted to a jury, a verdict for $5000 was returned.
The defendant moved for a new trial, which was granted on the ground that the verdict was excessive and that the court erred in submitting the question of the validity of the indictment to the jury.
Thereafter, the defendant moved the court to dismiss the plaintiff's petition for the reason that such petition was prematurely filed. This motion was overruled.
Thereupon, on the same day, the defendant gave notice of appeal on questions of law. The question before us is whether the overruling of a motion to dismiss the cause of action is a final order from which appeal may be taken or whether it is simply an interlocutory order, the prejudicial effect of which may be considered if the action on future trial results in a verdict and final order from which appeal may be properly prosecuted.
Section 12223-2, General Code, provides that an order affecting a substantial right in an action when in effect it determines the action and prevents a judgment, etc., is a final order which may be reviewed.
The order of the court overruling the motion of the defendant to dismiss does not determine the action, nor does it prevent a final judgment.
The order was simply to the effect that the petition, as filed, was not subject to a motion to dismiss because of the pendency of an untried indictment.
The motion to dismiss the appeal is sustained.
Motion sustained.
HORNBECK, P.J., GEIGER and BARNES, JJ., concur.