Yendes v. Shaw

Full title: YENDES, APPELLEE v. SHAW, APPELLANT, ET AL

Court: Court of Appeals of Ohio

Date published: Sep 10, 1947

78 N.E.2d 696 (Ohio Ct. App. 1947)

78 N.E.2d 696

50 Ohio Law Abs. 31

Opinion

No. 1955

Decided September 10, 1947.

Appeal — Final order — Order sustaining demurrer to and dismissing defenses and cross-petition.

An order sustaining a demurrer to the second and third defenses and a cross-petition, and dismissing said defenses and cross-petition, is a final order under the provisions of Section 12223-2, General Code, from which an appeal may be taken.

APPEAL: Court of Appeals for Montgomery county.

ON MOTION to dismiss.

Messrs. Beigel Mahrt, for appellee.

Mr. T.L. Barger, for appellant.

WISEMAN, P.J.

This cause is submitted on motion to dismiss the appeal on the ground that the order appealed from is not a final order.

The defendant, appellant herein, filed three separate defenses and a cross-petition. The trial court sustained a demurrer to the second and third defenses and the cross-petition. The defendant not desiring to plead further, the second and third defenses and the cross-petition were dismissed.

An order sustaining a demurrer without dismissing the action is not a final order, as the court may grant leave to amend. National Guarantee Finance Co. v. Russell, 25 Ohio Law Abs., 483. However, an order sustaining a demurrer to the second and third defenses and cross-petition and dismissing the defenses and cross-petition is a final order under the provisions of Section 12223-2, General Code, from which an appeal may be taken. Latham v. Ransome Concrete Machinery Co., 13 Ohio Law Abs., 63; Morehead v. Central Trust Co., Exr., 54 Ohio App. 9, 5 N.E.2d 932.

The motion to dismiss the appeal is overruled.

Motion overruled.

MILLER and HORNBECK, JJ., concur.