
    GEORGE, Plaintiff-Appellee, v. COLUMBUS (City), Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5388.
    Decided December 2, 1955.
    Jesse G. Dickinson, Edmund B. Paxton, Columbus, for plaintiffappellee.
    Chalmers P. Wylie, City Atty., John W. E, Bowen, Asst City Atty., Columbus, for defendant-appellant.
   OPINION

By THE COURT.

Submitted on motion of the plaintiff-appellee seeking an order dismissing the appeal for the reason that the order appealed from is not a final one.

The record reveals that the order to which the appeal is directed sets aside a verdict of the jury in favor of the defendant and grants a new trial. Counsel for the defendant urges that the appeal is based upon prejudicial error committed by the trial court in overruling its motion for a directed verdict at the conclusion of all of the evidence before submitting the case to the jury. The defendant also contends the Court abused its discretion in sustaining the motion for a new trial. It has only recently been held by our Supreme Court that the overruling of a defendant’s motion for a directed verdict, which has been seasonably filed, is a final appealable order which may be prosecuted when a verdict is returned in favor of the defendant and a motion for a new trial is sustained. In the case of Richards v. Industrial Commission, 163 Oh St 439, syllabus 1, it is provided:

“Where in the course of a trial the defendant appropriately moves for a directed verdict, which motion or motions are overruled, a verdict is returned for the defendant, and plaintiff’s motion for a new trial is sustained, there emerges from such sequences of events a final appealable order, i. e., the overruling of the defendant’s motion or motions for a directed verdict.”

The plaintiff-appellee urges, however, that the defendant-appellant did not actually move for a directed verdict when it made the following motion after the arguments had been concluded but prior to the submission of the case to the jury:

“The defendant is moving for a directed verdict on behalf of the defendant on the basis of the pleadings and for the reason that no reply was filed in the case of an affirmative defense which appears in the answer.”

Although the motion makes no reference to the evidence, we are of the opinion that it was necessary for the court to consider all of the evidence together with the pleadings in order to pass upon the same. It was therefore in the nature of a demurrer to the evidence admitting all of the proven facts. Since the order overruling the motion is an appealable order we overrule the motion to dismiss and will consider the alleged error of improperly sustaining the motion for a new trial when the case comes before this Court for final determination.

MILLER, PJ, HORNBECK, J, concur.

WISEMAN, J, not participating.  