
    Green, Appellant, v. Acacia Mutual Life Ins. Co., Appellee.
    
      (No. 32339
    Decided June 27, 1951.)
    
      
      Mr. Walter K. Sibbald, for appellant.
    
      Messrs. Marble & Vordenberg, for appellee.
   Stewart, J.

Although the briefs of plaintiff and defendant contain extensive arguments pro and con as to the justification of the trial court in setting aside the judgment and the verdict, in view of the conclusion at which we have arrived we do not reach that question.

We address ourselves only to the action of the Court of Appeals in dismissing plaintiff’s appeal on the ground that it was not predicated upon a final order, and, therefore, did not lie.

Prior to the adoption of the amendments of 1912, the Ohio Constitution delegated to the General Assembly exclusive authority to confer appellate jurisdiction on the Circuit Court, the predecessor of the present Court of Appeals, by providing that such court should have “such appellate jurisdiction as may be provided by law.”

The constitutional amendment of 1912 created the Courts of Appeals and provided that they should have “appellate jurisdiction in the trial of chancery cases, and, to review, affirm, modify, or reverse the judgments of the Courts of Common Pleas, Superior Courts and other courts of record within the district as may be provided by law. ’ ’

In the case of Cincinnati Polyclinic v. Balch, 92 Ohio St., 415, 111 N. E., 159, this court decided that the Court of Appeals acquired its appellate jurisdiction by the last above-quoted constitutional provision and that the General Assembly had no power either to enlarge or to limit that jurisdiction. That doctrine has been uniformly approved by this court since that time.

Although the 1912 amendment gave Courts of Appeals jurisdiction to review judgments, the term, judgments, was given a broad meaning by this court.

In Chandler & Taylor Co. v. Southern Pacific Co., 104 Ohio St., 188, 135 N. E., 620, the first paragraph of the syllabus reads:

“Such interpretation must be given a provision of the Constitution as will promote the object of the people in adopting it, and narrow and technical definitions of particular words should be avoided. In obedience to this rule the term 'judgments’ appearing in Section 6, Article IY of the Constitution as amended in 1912, is used in its broad and generally accepted meaning and not in that restricted meaning formerly given it by the Legislature in Section 11582, General Code. The term comprehends all decrees and final orders rendered by a court of competent jurisdiction and which determine the rights of parties affected thereby.”

Thus, under the constitutional amendment of 1912, the Courts of Appeals had the jurisdiction to review judgments, including all decrees and final orders, and the General Assembly had no power to enlarge or limit the jurisdiction of the court.

In a long line of cases beginning with Conord v. Runnels, 23 Ohio St., 601, and running through Hoffman v. Knollman, 135 Ohio St., 170, 20 N. E. (2d), 221, this court held that the setting aside of a general verdiet of a jury and the granting of a motion for a new trial does not constitute a final order and cannot be reviewed by an appellate court unless there is an abuse of discretion by the trial court in granting such motion.

In 1937, the General Assembly passed an amendment to Section 12223-2, General Code (117 Ohio. Laws, 615), effective August 23,1937, providing: “Vacating or setting aside a general verdict of a jury and ordering a new trial, is a final order.”

In the Hoffman case, where that statute was under consideration, it is stated in the syllabus:

“2. An order of a trial court setting aside a general verdict of a jury and granting a new trial is not a final determination of the rights of the parties and is not, therefore, a judgment or final order reviewable by the Court of Appeals, unless it clearly appears that the trial court has abused its discretion in granting such order.
“3. The jurisdiction of the Court of Appeals is conferred by Section 6, Article IV of the Constitution, and cannot be enlarged or curtailed by legislative action.
“4. The amendment of Section 12223-2, General Code (117 Ohio Laws, 615), effective August 23, 1937, providing that ‘vacating or setting aside a general verdict of a jury and ordering a new trial, is a final order,’ would, if given effect, enlarge the jurisdiction of the Court of Appeals, and is, therefore, in conflict with Section 6, Article IV of the Constitution.”

On November 7, 1944, an amendment of Section 6, Article TV of the Constitution, was adopted by the people, effective January 1, 1945. It provided, inter alia:

‘ ‘ The Courts of Appeals shall have * * * such jurisdiction as may be provided by law to review, affirm, modify, set aside, or reverse judgments or final orders of boards, commissions, officers, or tribunals, and of courts of record inferior to the Court of Appeals within the district * * *.”

After the effective date of that amendment, the General Assembly amended Section 11575, General Code, to read as follows:

“A new trial is a re-examination, in the same court, of the issues, after a final order, judgment or decree by the court.”

The General Assembly, at the same time it amended Section 11575, amended Section 11578 to read as follows:

“The application for a new trial must be made within ten days after the journal entry of a final order, judgment or decree has been approved by the court in writing and filed with the clerk for journalization, except for the cause of newly discovered evidence, material for the party applying, which he could not with reasonable diligence discover and produce at the trial. If a party was unavoidably prevented from filing an application for a new trial within such time, the court may in the interest of justice extend the time.”

Effective September 27, 1947, the General Assembly amended Section 11599, General Code, to read:

“When a trial by jury has been had and a verdict rendered, unless a motion for judgment notwithstanding the verdict shall have been filed, or the court orders the case reserved for future argument or consideration, a journal entry of judgment in conformity to the'verdict shall be approved by the court in writing and filed with the clerk for journalization.”

Effective the same date, Section 11599-1, General Code, was enacted which provides that no motion for judgment notwithstanding the verdict may be filed after a judgment’ in conformity to the verdict shall have been approved by the’court in writing and filed with the clerk for journalization.

Section 12223-2, General Code, which had been declared unconstitutional in the Hoffman case, was amended effective September 30, 1947, to read:

“* * :,i an order vacating or setting aside a judgment and ordering a new trial, is a final order which may be reviewed, affirmed, modified or reversed, with or without .retrial, as provided in this title.
“When a court makes such order granting a new trial, setting aside or vacating such judgment, the court upon the request of either party, shall state in the order the grounds upon which the new trial is granted and the judgment vacated or set aside.”

Prom the above statutes, it is obvious that the General Assembly has attempted to provide that the granting of a motion for new trial, setting aside a judgment entered upon a verdict of a jury, is a final order from which an appeal may be taken to the Court of Appeals, and the question before us is whether that objective was within the power of the General Assembly.

It will be observed that under the latest appropriate amendment to the Constitution the Court of Appeals is given jurisdiction as may be provided by law to review judgments or final orders, and, although now the General Assembly may legislate as to the jurisdiction of the Court of Appeals to review, it still cannot enlarge that jurisdiction with reference to anything except judgments or final orders.

As we have said, under the 1912 amendment which gave jurisdiction to the Court of Appeals to review only judgments, this court determined that judgments included final orders so that the words, “final orders,” add nothing to judgments so far as courts inferior to the Court of Appeals are concerned.

The question which now confronts us is whether the enactment by the General Assembly providing for the entering of a judgment upon a verdict before the filing of a motion for a new trial clothes that judgment with the attributes of a judgment or a final order, as those terms have been interpreted by this court.

When the constitutional amendment providing for an appellate review by Courts of Appeals only as to judgments and final orders was adopted in 1944, the people in voting upon the amendment must- have attributed to judgments and final orders the meaning which this court had declared and which obtained at the time of the submission of the amendment, and at that time assuredly the granting of a motion for a new trial, where there was no abuse of discretion by the trial court in granting it, was not a judgment or final order, even though the General Assembly had attempted to make it so.

The fact of entering judgment before the filing and consideration of a motion for a new trial does not constitute such a judgment as a final order, for the reason that the trial judge still has control of the judgment until either no motion for a new trial has been filed within the designated time or the court has passed upon such a motion.

In the Chandler case a judgment had been entered by default. The Court of Appeals had jurisdiction to review judgments and a motion to vacate the judgment had been filed within the term of its rendition. In the opinion, Judge Jones said:

“During that term the court had control of its journal entries, and any order made by it vacating a judgment and granting a new trial would not be erroneous unless there was an abuse of discretion upon the part of the court. * * *
“In the absence of such abuse, prejudicial to the plaintiff, there was no final order, for the plaintiff would have had a retrial of the case and might have obtained a judgment against the defendant.”

By the same line of reasoning the trial court in the present case had control of the judgment on the verdiet until it passed upon the motion for a new trial, and since the granting of a new trial was not erroneous, there being no abuse of discretion upon the part of the court, there is no final order, for the plaintiff has the right to a retrail of the case in the same court and might well obtain a judgment against defendant.

In deciding the present case, the Court of Appeals considered that a judgment entered upon a verdict preceding a motion for a new trial is a mere pro forma judgment to which the motion is addressed, and it held that an order of a trial court vacating and setting1 aside a pro forma judgment and verdict of a jury and granting a new trial is not a final determination of the rights of the parties and is not, therefore, a judgment or final order reviewable by the Court of Appeals unless it clearly appears that the trial court abused its discretion in granting such order. That-holding seems reasonable and logical. If a new trial is granted, and there is to be a re-examination in the same court of the issues in a cause, the judgment or decree which has been set aside is no longer in effect and, therefore, there can be no appeal because the order granting the new trial is neither final nor does it constitute a judgment. It does not' determine the action.

In the present case, after the trial court overruled defendant’s motion for a judgment notwithstanding the verdict, a judgment was entered upon the verdict in accordance with Section 11599, General Code. Within ten days thereafter a motion for a new trial was filed by defendant in accordance with Section 11578, General Code.

When the trial court granted that motion, the judgment which had been entered in accordance with the verdict was no longer in existence and, therefore, there was no such judgment which could be reviewed. The only thing which remains is the order granting the motion for a new trial and, as we held in the Hoffman case, that order is not, in the absence of abuse of discretion, a judgment or final order and cannot be reviewed by an appellate court.

Plaintiff refers in her brief to the long list of cases mentioned in the opinion in the Hoffman case, on pages 184, 185 and 186, in support of her claim that the order of the trial judge granting a new trial in the present case is final, but it will be noted that in each of those cases, with one exception, there was involved either the overruling of a motion for a directed verdict or the overruling of a motion for judgment notwithstanding the verdict, which was a final order.

The one exception is the case of Makranczy v. Gelfand, Admr., 109 Ohio St., 325, 142 N. E., 688, which is a case involving the vacating of a judgment of dismissal after the term in which the judgment had been rendered. A motion for new trial was not involved.

When the people amended Section 6, Article IV of the Constitution, by their vote on November 7, 1944, they could have given the General Assembly unlimited power to confer appellate jurisdiction on the Courts of Appeals, or they could have given the Courts of Appeals the authority to review orders granting motions for new trial. But they did not do so. They did enlarge the jurisdiction of Courts of Appeals by giving them appellate jurisdiction, as may be provided by law, to review judgments or final orders of boards, commissions, officers and tribunals, in addition to courts, but they still kept in the Constitution the provision that the review shall be confined to judgments or final orders.

Since the granting of a motion for a new trial, in the absence of abuse of discretion by the trial court, sets aside the judgment which has been entered in conformity with a jury’s verdict, and since that leaves only the order granting the new trial, and since such order is not a judgment or final order and cannot be made so by legislative enactment, the Court of Appeals was correct in holding that “the amendment of Section 12223-2, General Code, effective September 30, 1947, providing that, ‘an order vacating or setting aside a judgment and ordering a new trial, is a final order,’ would, if given effect, enlarge the jurisdiction of the Court of Appeals to a review of other than judgments and final orders, to which the power of the Legislature is limited, and is, therefore, in conflict with Section 6 of Article IV of the Constitution.”

It follows that the judgment of the Court of Appeals must be and is affirmed.

Judgment affirmed.

Weygandt, C. J., Middleton, and Taet, JJ., concur.

Zimmerman, Matthias, and Hart, JJ., dissent.

Zimmerman, J.,

dissenting. In this action, commenced in March 1948 and tried in the Court of Com-' mon Pleas of Hamilton County, the jury rendered its verdict for plaintiff. A motion by defendant for judgment notwithstanding the verdict was overruled and .the trial court thereupon approved a journal entry of the judgment in conformity to the verdict, which was filed with the clerk for journalization pursuant to Section 11599, General Code.

Within ten days thereafter, defendant filed its motion for a new trial and, upon hearing, the court granted the same on the ground “that there is newly discovered evidence material for the defendant and because the verdict and judgment are manifestly against the weight of the evidence,” and “ordered that the verdict and the judgment entered herein be, and the same are hereby set aside and vacated and a new trial of the cause is granted.”

Was such action of the court a final order appeal-able on questions of law to the Court of Appeals? Both the Court of Appeals and the majority of this court answer that question in the negative, but, under the existing organic and statutory law of Ohio, I cannot agree with such conclusion.

Section 6, Article IV of the Constitution of Ohio, effective January 1, 1913, provided in part as follows:

“The Courts of Appeals shall have * * * appellate jurisdiction in the trial of chancery cases, and, to review, affirm, modify, or reverse the judgments of the Courts of Common Pleas, Superior Courts and other courts of record within the district as may be provided by law.”

The interpretation of this amendment to the Constitution is contained in the first paragraph of the syllabus of Cincinnati Polyclinic v. Balch, 92 Ohio St., 415, 111 N. E., 159, which reads as follows:

“1. Section 6, Article IV of the Constitution of Ohio as amended September 3, 1912, confers jurisdiction upon the Courts of Appeals to review, affirm, modify or reverse the judgments of the Court of Common Pleas, Superior Courts, and other courts of record within the district. The General Assembly has no power to enlarge or limit the jurisdiction conferred by the Constitution of the state, but may provide by law for the method of exercising that jurisdiction.”

In 1939, this court decided the case of Hoffman v. Knollman, 135 Ohio St., 170, 20 N. E. (2d), 221, while the above-quoted section of the Constitution was operative and amended Section 12223-2, General Code, effective August 23, 1937, was in force, which section provided that “an order vacating or setting aside a general verdict of a jury and ordering a new trial, is a final order which may be reviewed, affirmed, modified, or reversed.” Attention is directed to the second, third and fourth paragraphs of the syllabus in that case, which are quoted in the majority opinion and will not be repeated here, wherein it was stated that Section 12223-2, General Code, was ineffective since it attempted to enlarge the jurisdiction of the Court of Appeals contrary to Section 6, Article IV of the Constitution.

On November 7, 1944, by vote of the people, Section 6, Article IV of the Constitution, was amended, effective January 1, 1945, to provide:

The Courts of Appeals shall have * * * such jurisdiction as may be provided by. law to review, affirm, modify, set aside, or reverse judgments or final orders of * * * courts of record inferior to the Court of Appeals within the district * * *.” (Emphasis mine.)

Obviously, the purpose of this amended section was to remove the “jurisdiction” of Courts of Appeals from the. confines of the Constitution and place it 'within the broad'powers of the General Assembly.

After the decision in Hoffman v. Knollman, supra, and the effective date of the amendment of Section 6, Article IV of the Constitution, the General Assembly amended Section 12223-2, effective September 30, 1947, and it presently recites in part:

“An order vacating or setting aside a judgment and ordering a new trial, is a final order which may be reviewed, affirmed, modified or reversed, with or without retrial * í(i V’ (Emphasis mine.)

. Other amended sections of the General Code passed subsequent to the decision in the Hoffman case and after the operative date of the amendment of Section 6, Article IV of the Constitution, provide, in substance, that following the verdict of a jury and the overruling of a motion for judgment notwithstanding the verdict, timely filed, the trial court shall cause judgment to be entered on the verdict, and that within ten days thereafter the losing party may file his motion for a new trial. See Sections 11599,' 11599-1 and 11578, General Code.

It seems to me that the General Assembly, proceeding under constitutional authorization and in the proper exercise of its prerogatives, has now enacted legislation which renders the Hoffman case inapplicable and obsolete as to actions commenced after September 30, 1947.

Now, where a litigant, after a favorable verdict, is awarded a judgment conforming to the verdict, he has gained his ultimate objective. That judgment stands as the final judgment in the case, just like any other final judgment, unless or until it is set aside by affirmative court action. When such judgment is set aside and vacated, the litigant who secured it loses a court pronouncement of substance and value. I cannot agree that the judgment entered on the verdict is merely a pro forma matter and of no real significance. Certainly, such was not the intention of the General Assembly.

It is, therefore, my opinion that, when a litigant obtains a favorable judgment in the Court of Common Pleas pursuant to a verdict of a jury and is then deprived of it, a final order results which may be taken for review to the Court of Appeals having jurisdiction.

The Courts of Appeals of the Eighth, Third and Second Appellate Districts have come to the same conclusion as evidenced by the cases of Haffner v. Schmeidl, 87 Ohio App., 143, 90 N. E. (2d), 700, Dyer v. Hastings, a Minor, 87 Ohio App., 147, 94 N. E. (2d), 213, and State, ex rel. Simons, v. Kiser, 88 Ohio App., 181, 96 N. E. (2d), 306.

Such concept corresponds with the holdings of this court in the cases of Makranczy v. Gelfand, Admr., 109 Ohio St., 325, 142 N. E., 688, and Durbin v. Hum phrey Co., 133 Ohio St., 367, 14 N. E. (2d), 5, and other cases therein cited, which are authority for the proposition that the setting aside and vacating of a judgment is a final order from which an appeal will lie. At the beginning of the opinion in the Durbin case it is stated:

“The sustaining of appellee’s motion for a new trial, after setting aside a judgment rendered in favor of appellant upon its motion for a directed verdict, took away appellant’s right to have final judgment entered in its favor, and is a final order from which appeal may be prosecuted. ’ ’

Consequently, I would reverse the judgment of the Court of Appeals herein and remand the cause to that court with instructions to pass upon the question of whether the trial court properly set aside and vacated the judgment for plaintiff and granted defendant’s motion for a new trial.

Hart, J.,

dissenting. In the case of Hoffman v. Knollman, 135 Ohio St., 170, 20 N. E. (2d), 221, decided March 22, 1939, this court held that, under Section 6, Article IY of the Ohio Constitution, and Section 12223-2, General Code, “an order of a trial court setting aside a general verdict of a jury and granting a new trial is not a final determination of the rights of the parties and is not, therefore, a judgment or final order reviewable by the Court of Appeals, unless it clearly appears that the trial court has abused its discretion in granting such order.”

However, effective January 1, 1945, Section 6, Article IY of the Constitution, was amended giving the Courts of Appeals jurisdiction in appeals from “final orders” as well as “judgments.” This amendment reads as follows:

‘ ‘ The Courts of Appeals shall have * * * such jurisdiction as may be provided by law to review, affirm, modify, set aside, or reverse judgments or final orders * * *.” (Italics supplied.)

Following this constitutional amendment some important legislative changes in Ohio appellate procedure were effected.

Prior to October 11, 1945, Section 11575, General Code, defined a new trial as follows:

“A new trial is a re-examination, in the same court, of an issue of fact, after a verdict by a jury, a report of a referee or master, or a decision by the court.” (Italics supplied.)

This section was amended, effective October 11, 1945, to meet the constitutional requirement as to jurisdiction of the Court of Appeals, to its present form as follows:

“A new trial is a re-examination, in the same court, of the issues, after a final order, judgment or decree by the court.” (Italics supplied.)

The re-examination of the record by the trial court is obtained by a motion for a new trial, seeking a retrial of the case de novo. It is important to note that before the amendment the function of the court in considering a motion for a new trial under the statute was to re-examine issues of fact only, whereas after the amendment the trial court is required to re-examine all issues both of fact and of law. It is also important to note that, under the statute before its amendment, the re-examination by the court was to be made after a verdict by the jury, a report of a referee or master, or a decision by the court, whereas after the amendment such examination is to be made after a final order, judgment or decree has been entered by the court.

Effective September 30, 1947, Section 12223-2, General Code, was again amended to its present form as follows:

“An order affecting a substantial right in an action when in effect it determines the action and prevents a judgment, or an order affecting a substantial right made in a special proceeding, or upon a summary application in an action after judgment, or an order vacating or setting aside a judgment and ordering a new trial, is a final order which may be reviewed, affirmed, modified or reversed, with or without retrial, as provided in this title.
“When a court makes such order granting a new trial, setting aside or vacating such judgment, the court upon the request of either party, shall state in the order the grounds upon which the new trial is granted and the judgment vacated or set aside.” (Italics supplied.)

Prior to September 27, 1947, Section 1.1599, General Code, provided as follows:

“When a trial by jury has been had, judgment must be entered by the clerk in conformity to the verdict, unless the verdict is special, or the court orders the case to be reserved for future argument or consideration immediately after the time for the filing of a motion for a new trial if it has not been filed. When a motion for a new trial is filed, then such judgment shall be entered only tohen the court has sustained such verdict by overruling the motion. Upon such overruling it shall immediately be entered.” (Italics supplied.)

Effective September 27, 1947, Section 11599, General Code, was amended and now reads as follows:

“When a trial by jury has been had and a verdict rendered, unless a motion for judgment notwithstanding the verdict shall have been filed, or the court orders the case reserved for future argument or consideration, a journal entry of judgment in conformity to the verdict shall be approved by the court in writing and filed with the clerk for journalization.” (Italics supplied.)

The clear purpose of amended Section 11599, General Code, as above quoted, is to bring upon the record a judgment or decree before the court reexamines the issues on a motion for new trial, as a result of which the court is required to sustain the verdict and judgment or set them aside, a function now authorized by amended Sections 11575 and 12223-2, General Code. In other words, a motion for a new trial is now addressed to a judgment as authorized by the statute rather than as before to a verdict of a jury or the decision of the court. And this court has many times held, as hereinafter noted, that either the retaining or the setting aside of a judgment or decree is a final order reviewable by the Court of Appeals under its constitutional jurisdiction. Besides, authority for an appeal from judgments is expressly given by Section 12223-3, General Code, which provides that “every final order, judgment or decree of a court * * * may be reviewed as hereinafter provided, unless otherwise provided by law. ’ ’

The ultimate question before the court in the instant case is whether the allowance of a motion by the trial court to set aside a judgment, entered upon the verdict of a jury, and the granting of a new trial is a final order.

The question arises whether the General Assembly by changing the function of a motion for new trial, now addressed to the vacation of a judgment instead of a vacation of the verdict alone, has changed the character of the order so vacating the judgment and granting the new trial as to make' it a final order.

The majority opinion seems to be bottomed on the premise that the judgment now authorized by the statute to be entered upon the verdict of a jury before any motion for a new trial is filed or considered is an ephemeral or transient one having no greater quality or substance than the verdict of a jury had before the amendment of the applicable statutes. It has been suggested that it is only a pro forma judgment. I am unable to understand what a pro forma judgment is. It is not recognized by the Constitution and is not defined by statute. As I understand it, the position of the majority members of the court in the instant case is that under the new procedure the object of a motion for a new trial and the vacation of the judgment is to secure a retrial of the cause, free from prejudicial error; that the setting aside of this procedural judgment tentatively entered is only incidental to the objects of the motion; and that the extinguishment of the judgment does not, in effect, determine the action so as to render the order of extinguishment appealable, since, on a retrial the same result may be obtained. In other words, the judgment lacks finality because the party to whom the granting a new trial is adverse is not out of court and has not exhausted his remedies since he may go back to a new trial, and perhaps again be successful in obtaining a verdict and judgment. The unfortunate result of such procedure is that the party adversely affected by the allowance of a motion vacating his judgment and granting a new trial may be subjected to the same fate at the hands of a trial court, which may require him to go through a long and expensive trial, over and over again, a contingency which the new procedure seeks to avoid.

Again, it seems to be the position of the majority members of the court that the entering of a judgment before the filing and consideration of a motion for a new trial does not constitute such a judgment a final order for the reason that the trial judge still has control of the judgment until either no motion for a new trial has been filed within the designated time, or the court has passed upon such a motion. To support this position reliance is based upon Chandler & Taylor Co. v. Southern Pacific Co., 104 Ohio St., 188, 135 N. E., 620. But it must be remembered that in that ease the judgment involved was a default judgment, not one on the merits, and for that reason was subject to suspension and in the discretion of the court subject to be set aside and set down for initial trial if there appeared to be a substantial defense tendered. I agree that under the new procedure the trial judge has control of the judgment until he passes upon a motion for a new trial, if one has been seasonably filed, but that fact does not operate to deny a review, if, upon hearing the motion, he sets the judgment aside.

A critical examination of the new procedure may clarify the reasons for the view I take in this dissent. In the first place, it will be noted that the present Constitution not only confers jurisdiction upon the Court of Appeals to review judgments or final orders, but authorizes the General Assembly to provide a method and means of procedure by which such review may be exercised and, in my opinion, the General Assembly was entirely within its jurisdiction in the amending of Section 12223-2, General Code, to provide that an order vacating or setting aside a judgment and ordering a new trial is a final order which may be reviewed, affirmed, modified or reversed. In fact, this court has on several occasions recognized and approved this procedure as applied to an ordinary judgment, specific reference to which will hereinafter be made.

The judgment upon a verdict is not a default or interlocutory judgment, but one rendered after a full trial on the merits. Bouvier’s Law Dictionary defines a judgment on the merits as “one rendered after argument and investigation, and when it is determined'which party is in the right, as distinguished from a judgment rendered upon some preliminary or merely technical point, or by default, and without trial. ’ ’

It is stated further, ibid.:

“A judgment of a court having jurisdiction both of the subject matter and the parties, however erroneous it may be, is a valid, binding and conclusive judgment, as to the matter in controversy, upon the parties thereto and those claiming under them. * * *
“This does not prevent a judgment from being attacked directly by writ of error or other proceeding in the nature of an appeal; and its validity may be impeached in other direct proceedings, as by motion to open or set it aside * * V’

A judgment or decree to be final for the purposes of an appeal must terminate the litigation between the parties on the merits of the case, so that if there should be an affirmance in the appellate court, the court below would have nothing to do but to execute the judgment or decree it had already rendered, Dainese v. Kendall, 119 U. S., 53, 30 L. Ed., 305, 78 S. Ct., 65. A judgment or decree is final which disposes of the whole merits of the case and leaves nothing for the further consideration of the court. Kelley v. Stanbery, 13 Ohio, 408; Teaff v. Hewitt, 1 Ohio St., 511; Cincinnati, Sandusky & Cleveland Rd. Co. v. Sloan, 31 Ohio St., 1. The judgment in question meets this test. If it should be affirmed no further action of the trial court would be required.

A judgment such as the one under consideration is a prerequisite to the filing of a motion for new trial and becomes final as determining the rights of the parties in ten days if no steps are taken for review by either party. If a motion for a new trial is made by the party adversely affected and such motion is denied, the judgment remains a valid one subject to review, but not final until steps for review are taken or abandoned. If the motion for new trial is granted the judgment, under the statute, is vacated or set aside, but not instantly destroyed as results under the procedure approved by the majority opinion. The setting aside or vacation of the judgment becomes final if, in due time, no appeal is taken.

Amended Section 12223-2, General Code, provides that “when a court makes such order granting a new trial, setting aside or vacating such judgment, the court upon the request of either party, shall state in the order the grounds upon which the new trial is granted and the judgment vacated or set aside.” (Italics supplied.)

Undoubtedly, the sole reason for such provision is to facilitate the process of perfecting an appeal from the order of the court.

This judgment entered upon a verdict of a jury is of the same quality as a judgment entered upon a directed verdict or a judgment notwithstanding the verdict and yet, when such a judgment is set aside on motion for new trial, this court has long held that the party adversely affected may appeal and have the judgment reviewed before going back to a new trial. Cincinnati Goodwill Industries v. Neuerman, 130 Ohio St., 344, 199 N. E., 178; Hubbuch v. City of Springfield, 131 Ohio St., 413, 3 N. E. (2d), 359; Murphy v. Pittsburgh Plate Glass Co., 132 Ohio St., 68, 4 N. E. (2d), 983; Michigan-Ohio-Indiana Coal Assn. v. Nigh, Admx., 131 Ohio St., 405, 3 N. E. (2d), 355; Durbin v. Humphrey Co., 133 Ohio St., 367, 14 N. E. (2d), 5.

Under the New Appellate Procedure Act, the trial judge in hearing a motion to vacate a judgment and to grant a new trial sits as a reviewing court as to the judgment and reviews issues of law, and as a result his judgment must be subject to review under the jurisdiction provided for the Court of Appeals. In other words, the General Assembly has now establisted the mechanism whereby the judgment of the trial court in vacating a judgment and granting a new trial becomes a final order within the meaning of that term as carried into the latest amendment of Section 6, Article IV of the Constitution. If the trial court vacates the judgment and grants a new trial the party adversely affected has his option to appeal on questions of law to the Court of Appeals or go back to a new trial just as he may do in case the Court of Appeals vacates his judgment and orders a remand for a new trial, in which event he again has his option to perfect an appeal to this court or submit to the remand for a new trial.

A judgment carrying with it the right of security by law of lien upon the judgment debtor’s property is a substantial right enjoyed by the judgment creditor and I know of no instance where the vacating of a judgment or even the denial of one on motion therefor does not afford a right of appeal to the Court of Appeals, even though the motion to vacate is granted during the same term in which the judgment is granted. A judgment, even though subject to vacation or reversal, is a substantial right which cannot be taken away without due process and that includes, in my opinion, the right of review under our civil procedure.

This court on many occasions, even before the recent amendment of the Constitution and statutes hereinbefore referred to, and before the decision of this court in the Hoffman case, denying the right of review upon the setting aside of a verdict, held that the granting or denying of a motion for a directed verdict as well as the vacating of a judgment, or even the refusal to grant one upon motion, is a final order subject to review. See 2 Ohio Jurisprudence, 211 to 222, Sections 106 to 110; Davis v. Turner, 69 Ohio St., 101, 68 N. E., 819; Jacob Laub Baking Co. v. Middle ton, 118 Ohio St., 106, 160 N. E., 629; Hocking Valley Mining Co. v. Hunter, 130 Ohio St., 333, 199 N. E., 184; Cincinnati Goodwill Industries v. Neuerman, supra; Michigan-Ohio-Indiana Coal Assn. v. Nigh, Admx., supra; Hubbuch v. City of Springfield, supra; Murphy v. Pittsburgh Plate Glass Co., supra; Durbin v. Humphrey Co., supra; Hoffman v. Knollman, supra.

With the judgment in this case becoming the law of this jurisdiction, unless the long line of authorities above noted are overruled, appellate procedure will be left in an anomalous situation. By motion for a directed verdict or a motion for judgment notwithstanding the verdict, a defendant will be able to protect his record and assure himself of a right of appeal either in case a verdict and judgment are awarded to the defendant but are set aside upon the allowance of plaintiff’s motion for new trial or in case a verdict and judgment are awarded to the plaintiff but are set aside on the allowance of the defendant’s motion for new trial, whereas a plaintiff will be denied such remedies and can have no such appeal in case a verdict and judgment in his favor are set aside upon the allowance of defendant’s motion for a new trial, a situation which the constitutional amendment and the statute enacted pursuant thereto were designed to correct.

In the Hoffman case, this court held that the term, “judgment,” used in the Constitution in relation to the jurisdiction of the Court of Appeals, comprehended final orders as well, but that the setting aside of a general verdict of a jury and granting a new trial was not a judgment or final order reviewable by the Court of Appeals unless the trial court abused its discretion in granting such order. In my opinion, the latter part of the court’s holding, in that case, relating to the setting aside of a verdict and the granting of a new trial has been wholly abrogated by the amendment of the Constitution and the applicable statutes which now make the allowance of a motion for a new trial a final order because such allowance sets aside not only the verdict of the jury but a judgment as well.

Unless the granting of a motion for new trial is regarded as a final order the defeated party has no opportunity to have reviewed any questions of law raised during the trial such as the allowance of a motion to set aside a judgment entered upon a verdict. In my opinion, the constitutional amendment and the amendment of the statutes hereinbefore referred to were adopted for the purpose of avoiding such a result and have effected that purpose.

The present Appellate Procedure Act has been in operation since September 1947, during which time the courts of this state have come generally to regard the vacating of a judgment upon a motion for a new trial as a final order. In my opinion, this court is not justified in creating the confusion which a reversal of that rule of procedure will entail.

Matthias, J., concurs in the foregoing dissenting opinion.  