
    SLOTHOWER et, Plaintiffs-Appellants, v. DAYTON POWER & LIGHT COMPANY, Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2337.
    Decided September 22, 1955.
    Sharts, Singer & Brown, Dayton, for plaintiffs-appellants.
    Roy D. Boucher, Dayton, for defendant-appellee.
   OPINION

By THE COURT:

Submitted on motion of defendant-appellee to dismiss the appeal on the ground that the order appealed from is not a final order.

In the court' below defendant filed a motion for judgment on the pleadings. The motion was directed to the fourth cause of action in the third amended petition. This motion was sustained. The court, on its own motion, struck the fourth cause of action from the third amended petition. Plaintiff-appellant was granted leave to file a fourth amended petition, no time limit being stated. No fourth amended petition has been filed; neither has judgment of dismissal been entered.

In Vol. 2, O. Jur., 2d, page 623, Section 49, the text is as follows:

“A motion for judgment on the pleadings is in the nature of a general demurrer and presents only questions of law, and appeal may not be taken from the overruling of such motion unless the pleader stands on the motion and permits judgment to be entered against him. Consequently the overruling of such motion is not a final order upon which an appeal on questions of law may be predicated. Nor is an order purporting to enter judgment on the pleadings for the plaintiff as to the first defense in the defendant’s answer and that the motion for such judgment be and is sustained a final order from which an appeal on questions of law can be taken.

“Where, however, the defendant makes a motion for judgment on the pleadings, such as the petition, answer, and reply, and that motion is sustained and judgment is entered for the defendant, it constitutes a final judgment upon which an appeal on questions of law may be taken.” (Emphasis ours.)

In the footnote two cases are cited. Stephens v. Trotwood, 43 Abs 157, 53 N. E. (2d) 650 (Court of Appeals of Montgomery County), and Hummel v. Columbus Baseball Club, Inc., 71 Oh Ap 321, 49 N. E. (2d) 773 (Court of Appeals of Franklin County). In the former case the court held that an order sustaining a motion for judgment on the pleadings did not constitute a final order from which an appeal on questions of law could be taken. In the latter case the motion for judgment on the pleadings was sustained and judgment was entered for the defendant. The court held that such order constituted a final order from which an appeal could be taken.

Inasmuch as the record in this case shows that plaintiff was granted leave to file an amended petition and judgment for defendant on the fourth cause of action was not entered, the order made does not constitute an appealable order.

Motion to dismiss sustained.

MILLER, PJ, HORNBECK and WISEMAN, JJ, concur.  