
    State, ex rel. Jones, v. Gorman, Judge.
    (Decided June 24, 1935.)
    
      Mr. George 8. Hawhe, for relator.
    
      Mr. Wm. J. Rielly, for respondent.
   Ross, P. J.

This is an original proceeding in mandamus whereby it is sought to compel the Court of Common Pleas to enter a final judgment.

The relator was a defendant in' an action filed by The Central Trust Company of Cincinnati, in which the construction of a will was sought.

The relator demurred to the petition and the demurrer was overruled.

The relator then presented to the court the following judgment, which the court refused to enter:

“This cause being heard on the demurrer of defendant Margaret Groome Jones to the petition, the court on consideration thereof, does hereby overrule the same.

“And thereupon said defendant Margaret Groome Jones not desiring to plead further, the court find that said defendant Margaret Groome Jones is in défault for answer and that the allegations of the petition are confessed by her to be true.

“It is therefore considered by the court, that the plaintiff recover from the defendant Margaret Groome Jones its costs herein expended by reason of said demurrer.

“To all of which the defendant Margaret Groome Jones by her counsel excepts.”

The court then made the following entry:

“This day this cause came on to be heard upon the demurrer of Margaret Groome Jones, defendant herein, to plaintiff’s petition, and was argued by counsel and submitted to the court; on consideration whereof, the court finds said demurrer not well taken, and overrules the same, to which said defendant, by her counsel, excepts.

“On motion, defendant is granted ten days from the entry hereof within which to file her answer, and if no answer or pleading is filed, the cause will proceed to be heard upon its merits, to all of which the defendant, Margaret Groome Jones excepts.”

This was an action to construe a will. The court upon a hearing upon the merits could find either that the will required no construction, or could proceed to construe it. Such action only could be a final determination of the case. The relator states in the entry presented that the court finds “the allegations of the petition are confessed by her to be true.” How can a mere default for answer by one defendant result in a final determination of the cause? Such confession does not construe the will or find that construction is not necessary. Obviously the entry presented was improper. The prayer is to have a judgment similar to that presented entered by the court.

If the petition is demurrable, this defect may be raised at any time. The entry made by the court is not a final judgment against the relator, and until such a final judgment is entered she can not have her right to bring proceedings in error in any way jeopardized. When a final order is made in the case she will have an adequate remedy at law by proceedings in error.

It is apparent that the purpose of this proceeding, is to permit the relator to try out before this court the sufficiency of the petition. In order to do this it is necessary that a final entry be made. The nature of the action in the Common Pleas Court prevents the making of such an entry at this time.'

Writ denied.

Matthews and Hamilton, JJ., concur.  