Opinion
No. 32154
Decided July 18, 1951.
Court of Appeals — Jurisdiction to review judgments or final orders — Order granting motion for new trial — Not judgment or final order.
APPEAL from the Court of Appeals for Mahoning county.
This action was instituted in the Common Pleas Court to recover a sum alleged to be due on a contract. The jury returned a verdict for defendant. On the same day judgment was rendered on the verdict. A motion for new trial, thereafter filed, was sustained, the verdict and judgment were set aside and a new trial was granted.
On appeal on questions of law, the Court of Appeals reversed the order of the trial court for error in setting aside the verdict and judgment and granting a new trial, and remanded the cause to the trial court with instructions "to enter judgment on the verdict as rendered by the jury."
An appeal to this court from the judgment of the Court of Appeals presents the question whether the Court of Appeals had jurisdiction to hear and determine the appeal from the order of the trial court setting aside the verdict and judgment and granting a new trial.
Mr. Edwin L. Stanley and Mr. W.O.R. Johnson, for appellant.
Mr. Peter B. Betras, for appellees.
No question of abuse of discretion in granting the new trial being involved, the judgment of the Court of Appeals is reversed and the cause remanded to that court with instructions to dismiss the appeal for want of jurisdiction, on authority of Green v. Acacia Mutual Life Ins. Co., ante, 1.
Judgment reversed.
WEYGANDT, C.J., ZIMMERMAN, STEWART, MIDDLETON, TAFT, MATTHIAS, and HART, JJ., concur.
ZIMMERMAN, MATTHIAS, and HART, JJ., although adhering to their views as announced in the Green case, supra, that Section 12223-2, General Code, is not in conflict with Section 6 of Article IV of the state Constitution, accord the decision and judgment of this court therein due recognition, and, therefore, only to avoid the chaotic condition which would result from a situation, created by the provisions of Section 2 of Article IV of the state Constitution, that a law would be valid in some appellate districts but invalid in other appellate districts, and for the sole purpose of assuring uniformity of procedure in our courts, concur in the reversal of the judgment of the Court of Appeals.