
    Henry v. Jeans et al.
    
      New party and answer after judgment — Final Order.
    
    1. Where a stockholder in a railway company, after the entry of a judgment against the company, but at the same term is, upon his motion and good cause shown, made a party defendant with leave to file answer, and thereupon answers to the merits, gives notice of appeal, and perfects his appeal to the circuit court, it is error in the appellate court to strike from the files and suppress such answer because of its having been filed after judgment.
    2. The order of the appellate court striking out and suppressing such answer, is a final order reviewable on error, although the appellant, subsequently to the order of the court, makes application for leave to file his proposed answer, and the application is continued to the next term.
    Error to the Circuit Court of Jefferson county.
    Hoadly, Laut&rbach Johnson, Harmon, Qolston, Goldsmith $ Hoadly, for plaintiff in error.
    I. Whether Henry is entitled to prosecute this petition in error, of course, depends upon the assumption that his answer was properly filed, and that, at the time the order was made by the circuit court, he occupied the position of litigant in the cause, entitled to offer proof and maintain his cause, according to the averments of the pleadings, including his own. It does not seem to us that there can be any doubt that one who holds this position is finally and fatally affected by an order depriving him of the right thus acquired, and remitting him to an appeal to the discretion of the circuit court for leave to present his rights de novo by the same or a new pleading. The circuit court struck Henry’s answer from the files, but gave him leave to move at the next term to file it as a pleading in the case. The theory, of course, is that his pleading was improperly filed in the common pleas, but that hereafter upon a sufficient showing, the circuit court may find it to be its duty to permit such filing. But if it were properly filed in the common pleas, the basis for the assumption is gone, and the action of the circuit court has certainly deprived him of a substantial right, which entitles him to file his petition in error, and to prosecute it successfully under sec. 6707 of the Revised Statutes. So far as Henry is concerned, the order striking his answer from the files affects his right to try the issues it made, and, for the time being at least, as to him determines the action, and prevents the judgment which he seeks. It is no answer to this to say that he may return, in the capacity of a suppliant, to the circuit court, and there show that he ought to be hereafter allowed to file this answer. The question is: Is he not now rightfully in court ? Did he not rightfully come into court when permitted to file his answer in 1886 ? If these questions should be answered affirmatively, his right to remain in court and try his case would also be established. Striking his answer from the files destroys this right.
    II. The order of the circuit court was erroneous, for several reasons:
    
      First, the motion came too late, November, 1890. Revised Statutes, sec. 6723.
    
      Secondly. They elected their remedy, viz.: motion to dismiss the appeal. They might have moved the circuit court in 1885 to strike the answer from the files, or in the alternative, to dismiss the appeal. .They chose the latter and postponed the former until now. We submit that by so doing they exhausted their right to strike the answer from the files. They elected to try to dismiss the appeal; finding they had no right to this, they cannot retrace their steps. The appeal was dismissed wrongfully, not rightfully; therefore, they reserved no right to move to strike the answer from the files by procuring the dismissal of the appeal.
    
      Thirdly. This court have held that an appeal may be taken to the circuit court by a stockholder as being within the designation, “ Other persons directly affected,” where there is reason to believe that the corporation is failing to perform its duty to him. This was required by the practice in equity. This is well established by the following cases: Sage v. Central R. R. Co., 93 U. S. 412; Ex parte Cutting, 94 U. S. 14; Ex Parte Jordan, 94 U. S. 248; Hinckley v. Gilman, Clinton and Springfield R. R. Co., 94 U. S. 467; Ex parte Cockcroft, 104 U. S. 578; Guion v. Liverpool, London & Globe Ins. Co., 109 U. S. 173; Foster v. Foster, 7 Paige, 48, 51.
    
      Fourthly. This court held in Goodwin v. Cincinnati & Whitewater Canal Co., 18 Ohio St. 182, that: “It is equally well settled that the property of a corporation is a trust fund in the hands of its directors, for the benefit of its creditors and stockholders.” The rules which control other cases of trust have equal application here. Nothing is more familiar in chancery than the practice of suing and defending in a representative capacity by a stockholder for his corporation. This is the very relation the plaintiffs, Jeans and others, assume here. In analogy, the legislature has extended the right to taxpayers of municipal corporations. Revised Statutes, secs. 1278, 1778.
    The code (Revised Statutes, sec. 4995) permits a trustee of an express trust to sue without joihing with him the person for whose benefit the action is prosecuted, but it does not forbid such union, and by force of the decision made in this case when last before this court, the cestui■ que trust, although not so joined, is a party so directly affected by the result as to be entitled to appeal. So again Revised Statutes, sec. 5008, permit one or more to sue or defend for the benefit of all, where the question is one of a common or general interest of many persons. The fact that the trust relations of the parties in this case are corporate does not alter the principle. Naylor v. Smith, 15 Weekly Rep. 528; Re Hutchinson's Trust, 1 Drewry & S. 27, 30; Belcher v. Belcher, 13 Weekly Rep. 913; Longbourne v. Fisher, 27 Id. 405; Re Hopkins, L. R. 19 Ch. D. 61; Brown v. Sawer, 3 Beav. 598; Greenaway v. Rotherham, 9 Sim. 88; s. c. 7 L. J. (N. S.) Ch. 98; 2 Jur. 45; Rowlinson v. Hallifax, 2 Sim. & S. 27; Watson v. Cave, Eng. Ct. App. 1881; 44 Law Times Rep. R. N. 40; s. c. L. R. 17 Ch. D. 19; Sims v. Ridge, 3 Merivale’s Rep. 458; Fleming v. Prior, 5 Madd. 423.
    
      Fifthly. Your Honors have already to a very large extent disposed of the subject, by your per curiam in this case, but the precise question now under consideration was not before the court upon the former hearing, unless it be treated as necessarily involved, in the discussion then had. It seems to us so involved and that the reversal of the order of the circuit court dismissing the appeal in effect affirmed the propriety of the court’s action in permitting the filing of . Henry’s answer, for manifest reason: How else is a stockholder, or cestui que trust, or other person “ directly affected ” to perfect his appeal? Revised Statutes, secs. 5226 and 5227; People’s Bank v. Hamilton Manufacturing Co., 10 Paige 418.
    
      Sixthly. We suppose that the order of the circuit court in this case was founded upon Revised Statutes, see. 5225. This is not to be construed strictly. Otherwise new parties could not be made even in the circuit court, unless the permission to amend involve this power. But as the right to allow amendments is also exercisable by the court of common pleas even after judgment, the very suggestion defeats our learned adversaries.
    This is not an isolated section to be read by itself alone. It is to be construed as in pari materia with section 5227, which gives the whole judgment term to the appellant within which to “ enter on the records of ” his intention to appeal, and thirty days thereafter to furnish the necessary undertaking. In other words it is not until after the judgment term has passed, and all the modifications which the court, having control of the cause during the term, may have made or permitted, that the party is compelled to take his appeal.
    What is meant by the requirement of sec. 5225 that the trial in the circuit court shall “be upon the same pleadings,” is that the case shall be tried upon the pleadings which the transcript of the clerk of the court of common pleas shows had been filed in that court, (the original of which have been transmitted by its clerk to the clerk of the circuit court), together with such amendments as the latter may allow.
    It certainly was not intended to prevent the court of common pleas from acting during the judgment term, even after notice of appeal, under section 5114, Revised Statutes. Grant v. Ludlow, 8 Ohio St. 28; Babcock v. Camp, 12 Ohio St. 11; Morgan v. Spangler, 20 Ohio St. 38, 56.
    It may be claimed that the language of section 5114 relates only to the addition or eliminatiori of a “ name ” without increasing or diminishing the number of parties. Such was not the view taken, however, by the Court of Appeals of New York, where the provision of the code in question originated. Davis v. The Mayor, etc., of the City of New York, 14 N. Y. 527; Daniell Chancery Pr., 5 Am. ed., 406; Story on Equity Pleadings, sections 429-432; Hamilton v. Houghton, 2 Bligh 169.
    
      Seventhly. The circuit court must have acted on the theory that in point of fact Henry became a party and filed his answer after the judgment of the common pleas had been rendered, and that in point of law, the control of the court of common pleas over the judgment ended with its rendition, with perhaps the single exception that one who had been a party to the cause at the time of such rendition might within three days, or in some instances afterwards, move for a new trial. The plenary power of courts over their own records during the term has been established from time immemorial, as a necessary and essential principle of the common law. It is theoretically and logically founded upon the fiction that the term of a court is but a single' moment of a single day; that the action of the court during the term is but the emission of a single judicial breath, and, therefore, that that which is done on the last calendar day is, in legal philosophy, done on the first day of the term. Coke Litt., 268; Freeman on Judgments, sec. 69; Blackamore's Case, 4 Coke Rep. 454; Blackstone’s Comm. 406; Botkin v. Commissioners, 1 Ohio 375; Hunt v. Yeatman, 3 Ohio 16; Critchfield v. Porter, 3 Ohio 519; Greene v. Dodge, 3 Ohio 486; Heirs of Ludlow, v. Johnston, Id. 553; Riddle v. Bryan, 5 Ohio 50; Torbet v. Coffin, 6 Ohio 34; Shelton v. Gill, 11 Ohio 417; Reynolds v. Stansbury, 20 Ohio 344.
    Thus stood the law at the date of the adoption of the code in 1853, which codified the rules substantially as they now exist. The only change made by the Code of Civil Procedure was the .rule now stated in Revised Statutes, sec. 5307. That a provision like this, in affirmative language, limited the time, during the term, within which justice may be thus done by the court, is directory and not mandatory, follows, we think, from the general principles of legal philosophy, as well as the authorities upon the subject. State v. Harris, 17 Ohio St. 608; Fry v. Booth, 19 Ohio St. 25; Up
      
      ington v. Oviatt, 24 Ohio St. 232, 241; Bainbridge v. State, 30 Ohio St. 264, 275; Sedgwick on Constitutional and Statutory Law, and Pomeroy’s Notes, 316; Bishop’s Written Law, 255; Pearse v. Morrice, 2 Ad. & Ell. 96; Lewis v. Labauve, 13 La. Ann. 382.
    Before the adoption of the code the principle of the simultaneousness of everything done at the term was applied and its exception stated in cases of other kinds. Follett v. Hall, 16 Ohio 111; May v. State, 14 Ohio 462; Memphis v. Brown, 94 U. S. 715; Brockett v. Brockett, 2 How. 241; Stahl v. Webster, 11 Ill. 511; Burch v. Scott, 1 Bland Ch. Rep. 112; Robinson v. County Commrs., 12 Md. 132; Green v. P. W. & Ky. R. R. Co., 11 W. Va. 685; Moore v. Taylor, 1 Idaho, N. S. 630; Ross v. Ross, 83 Mo. 100; Ætna Life Ins. Co. v. McCormick, 20 Wis. 265; Williams v. Hayes, 68 Wis. 248; United States v. Harmison, 3 Sawyer 556; Obenchain v. Comegys, 15 Ind. 496; Burnside v. Ennis, 43 Ind. 413; Richardson v. Howk, 45 Ind. 415; Bank of the United States v. Moss, 6 How. 31; Bronson v. Schulten, 104 U. S. 410; Phillips v. Negley, 117 U. S. 665.
    
      Harrison, Olds $ Henderson, for plaintiff in error.
    The petition in error is premature. Revised Statutes, secs. 5310, 6707, 6710.
    No judgment, finally determining the rights of the parties in the action, has been rendered by the circuit court, since the cause was remanded. The action is still pending in that court. The order, that the paper be surpressed and stricken from the files, did not in effect determine the action and prevent a judgment. Holbrook, Adm'r, v. Connelly, 6 Ohio St. 199.
    Every order, which deprives a party of a substantial right in an action, is not a final order. The statute does not say, or mean, that an order is final, when it prevents such judgment as a party seeks, or by his pleadings seeks. It says, “ when such order.....prevents a judgment.”
    Neither the action of the plaintiff to obtain a judgment, nor the defenses thereto, nor the proceedings of Henry to interpose a further answer, have been finally disposed of by the circuit court. All are in fieri, and, as to each of them, something further remains to be done between the parties in that suit, and awaits the final determination of that court. As to each of them, the further action of that court is required. The interlocutory order complained of does not prevent a judgment, or finally determine the right of Henry to answer.
    The order of the circuit court was not erroneous. The motion to suppress answer was not too late. We admit that an order of the common pleas granting leave to set up by answer defenses in bar of the action of the plaintiffs, after that court has finally determined the rights of the parties by its judgment and when it is not ashed to vacate or modify such judgment or to grant a new trial, is in our practice novel and difficult to denominate. But whatever else it may be, surely it is not a final order in any sense of the term. To be a final order its direct and immediate effect must be to determine the action and prevent a judgment. The vacation of a judgment does not determine the action or prevent a judgment. Every order granting leave to file a pleading is, in the fullest sense, interlocutory. It does not end the litigation, but it does bring into the action issues requiring further action of the court before the equity of the case be determined and the rights of the parties in the action can be settled. Every interlocutory order may be altered, corrected or annuled at any time before the action shall be finally disposed of by judgment. 13 Ohio 408; 1 Ohio St. 512.
    The motion to dismiss appeal did not cut off the rights to move to surpress Henry’s answer. Counsel for Henry contend that the plaintiffs were put to an election between moving to dismiss the appeal and moving to suppress this answer. Surely, there was no inconsistency between the two motions. The plaintiffs, by' moving to dismiss the 'appeal, did not affirm or recognize the validity or propriety of the order granting Henry leave, to answer. The two motions were independent of each other, and were for entirely different objects. If the appeal should be dismissed, then any further question, in regard to the pleading or to the issues to be tried in the circuit court, would be of no consequence and idle. Therefore, it was eminently proper that the plaintiffs should first move to dismiss the appeal, and have that matter determined, before taking any further step in the progress of the action before the circuit court. A motion for one purpose does not “exhaust” the right to move for a wholly different purpose. By their motion to suppress and strike from the files Henry’s answer, the plaintiffs did not “retrace their steps.” After the order of the circuit court, dismissing the appeal, was set aside, the plaintiffs at their first opportunity took their next forward step by their motion to suppress this paper in order to ascertain the issues to be tried by the cureuit court.
    The leave to Henry to file answer, granted by the common pleas, was irregular, improper and without authority. The entry of the common pleas, made on Dec. 10, 1885, and after its final judgment, comprised three different things. It purported: (1) To make Henry a party defendant to the action which it had finally disposed of. (2) To give him leave to answer and set up defenses to a cause of action then merged in judgment; and (8) To enter his notice of appeal, and to fix the penalty of an appeal bond.
    Our Code of Civil Procedure defines pleadings, and prescribes their effect and the rules of pleading. From these provisions, it is manifest that it was not intended to authorize the common pleas, after its final determination by judgment of the rights of the parties in the action and while the judgment remains in force and no application is made to the same court to vacate or modify it, to allow new pleadings to be filed, setting forth defenses to the cause of action which have passed into judgment, and to raise issues of law or of fact which are not to be tried and determined by the same court. Revised Statutes, secs. 5058, 5081; Swan’s Pleadings and Precedents, 120; Revised Statutes, secs. 5128, 5130, 5131; Revised Statutes, sec. 5310.
    The pleadings and issues must precede the trial, and the trial must precede the judgment. To render judgment first, then to have the trial, and afterwards to frame the issues by pleadings, would reverse the proper order of judicial procedure. After the rights of the parties have been finally determined by a judgment, which is unimpeached, there can be no occasion for further pleadings in regard.to such rights, or for raising further issues which are not to be tried.
    Ample power is conferred by the code upon the circuit court to permit or order such amendments or additional pleadings as, in its opinion, will be in furtherance of justice. Sec. 5225, Revised Statutes; 18 Ohio St. 456, 462; 39 Ohio St. 484.
    Opposing counsel contend that the general provisions of sec. 5114, in regard to amendments before or after judgment, sustain the action of the common pleas in granting to Henry leave to answer after judgment, and that the special provision of sec. 5225, that the trial in the circuit court shall be conducted upon the same pleadings as in the common pleas, unless amendments are permitted in the circuit court, does not restrict or abridge the operation of the general provisions of sec. 5114.
    It is a general and well settled rule of construction, that general language found in one part of a statute is to be modified and restricted in its application, when it would otherwise conflict with specific provisions found in another; and this from the reasonable, and most irresistible conclusion, that when the mind is directed to any particular subject, the language used is more likely to express the intention, than general words, which might otherwise cover it, but' from which it does not appear that the particular case was intended to be provided for. Ohio v. Blake, 2 Ohio St. 151; United States v. Collier, 6 Ohio St. 62; Doty v. Rigour, 9 Ohio St. 524; Bode, Adm'x, v. Welch, 29 Ohio St. 21; Kilgore v. Emmet, 33 Ohio St. 410; Riddle v. Howenstein, Supreme Court Com., May 29, 1883, not reported; 4 Ohio Digest 11; Horton v. Horner, 14 Ohio 437.
    Opposing counsel claim that, upon this hearing in error to reverse the order of the circuit court, suppressing the answer of Henry, all presumptions are in favor of the validity and regularity of the action of the common pleas in granting him leave to file his answer, and such action should not be treated as invalid or irregular, if there be any theory of law on which it may be sustained. The contrary of this is the very well settled rule. Error will not be presumed. All presumptions are in favor of the validity and the correctness of the order of the circuit court, and its action in suppressing the answer should not be treated by this court as invalid or erroneous, if there be any theory of law on which it may be sustained. When the circuit court reviews the action of the common pleas, the presumption is in favor of the validity of the action of the later court. But, when the supreme court reviews the action of the circuit court in reversing or annulling an order or judgment of the common pleas, the presumption is in favor of the correctness of the order or judgment of the circuit court. Tod v. Wick, 36 Ohio St. 371; McHugh v. State, 42 Ohio St. 154; Woolen Mills Co. v. Titus, 35 Ohio St. 253; R. R. Co. v. Collett, 6 Ohio St. 182.
    After a final judgment is rendered and entered, the only res, or subject matter, over which the court has jurisdiction, during the judgment term, is the judgment, into which the cause of action upon which it was rendered became, upon its rendition, merged. It follows, that an order made by the court as if the judgment had not been rendered and entered, and as if the action were still pending and undetermined, permitting a new pleading 'to be filed and new defenses to the original cause of action to be presented, is not merely an erroneous or irregular exercise of power, but is unauthorized and void. It may not, for the purpose of usurping jurisdiction, be falsely assumed that the action is still pending and undetermined, when in fact it has been determined and is no longer pending. Ludlow v. Johnson, 3 Ohio 576; Dennison v. Talmadge, 29 Ohio St. 433; Anthony v. Kasey, 88 Va. Rep. 338; Reynolds v. Stockton, 43 N. J. Eq. 211; Munday v. Vale, 34 N. J. Law 418.
    The common pleas had no power, after its final judgment and without any application to open it up or to vacate or modify it, to admit Henry as a party defendant in the cause. If the court had such power, still its order, granting him leave to file his answer, was, as we have argued, unauthorized and void, as well as irregular and improper. But, if Henry was not a party, then for that reason, as well as others, his answer was not properly filed, and the order granting-leave to file it was void as well as erroneous.
    It has been repeatedly held by this court that the right of appeal is conferred by the statute, that no action of the common pleas can affect the right, or deprive a person entitled thereto of his appeal, that the right to appeal accrues the moment the judgment is entered; and the giving of notice, and execution of an appeal bond, are acts by which the right of appeal is saved, not acquired. Hubble v. Renick, 1 Ohio St. 171.
   DlCKMAN, J.

In the year 1872, The Cincinnati & Muskingum Valley Railway Company leased its railway and property appertaining thereto, to The Pittsburgh, Cincinnati & St. Louis Railway Company. Samuel Jeans and others, the defendants in error, as stockholders of the latter company, brought suit, in 1885, in the Court of Common Pleas of Jefferson county, against that company and The Cincinnati & Muskingum Valley Railway Company to cancel the lease, and to restrain The Pittsburgh, Cincinnati & St. Louis Railway Company from using its funds to pay the interest on the bonds of the lessor company. The Pittsburgh, Cincinnati' & St. Louis Railway Company filed an answer to the petition. •The Cincinnati & Muskingum Valley Railway Company filed a demurrer to the petition, and on the 24th day of November, 1885, the demurrer was heard, and overruled by the court. On the same day, the case was further heard, and submitted to the court, upon the pleadings and evidence; and thereupon the 'court found, upon the issues joined, for the plaintiffs, and, in accordance with the prayer of the petition, rendered judgment, that the lease be vacated, that the demised railway property be surrendered and delivered up, and that The Pittsburgh, Cincinnati & St. Louis Railway Company be perpetually.enjoined.

■ After rendition of judgment, but at the same term, to wit: On the 10th day of December, 1885, Evan J. Henry, the plaintiff in error, intervened, and was made a party with leave to answer to the merits, the court entering upon its journal an order that, “ upon motion and good cause shown, Evan J. He.nry is made party defendant herein, with leave to file answer.” On the same day Henry, for himself and stockholders of The Cincinnati & Muskingum Valley Railway Company, who might unite with him in the defense of the suit, filed his answer, and thereupon entered on the records notice of his intention to appeal,'and perfected his appeal. The circuit court at the May term, 1886, on motion of counsel for the plaintiffs, dismissed the appeal. Upon proceedings in error prosecuted by Henry, this court reversed the judgment of the circuit court, and remanded the cause for further proceedings, holding that Henry, as one of the stockholders of the lessor company, on behalf of himself and other stockholders, might appeal from the decree ordering the cancellation of the lease, under the provisions of section 5226, of the Revised Statutes, as a “ person directly affected ” thereby, and that it was the duty of the appellate court to hear the case upon its merits, and allow additional pleadings to -be filed, as the justice of the case might require, and not dismiss the case otherwise than upon its merits. Henry v. Jeans, et al., 47 Ohio St. 116. When the case came on to be .again heard, at the November term, 1890, of the circuit court, the plaintiffs moved to strike from the files and suppress the answer of Henry for himself and others to the petition. This motion was granted. Henry excepted, and thereupon made application to the court for leave to file his proposed answer, which application was continued to the .next term. To reverse the action of the circuit court, the ■present petition in error was filed.

It is contended in behalf of the defendants in error:

(1.) That the order of the circuit court, that the answer of Henry be stricken from the files, was not a final order, and that therefore, he is not entitled to prosecute his petition in error herein.

(2.) That the court of common pleas had not jurisdiction or power, after its determination of the rights of the parties litigant by its judgment in the action, to allow the answer of Henry to be filed in the cause ; and

(3.) That the trial in the court of common pleas was not conducted upon any answer of Henry to the petition, and that therefore, the circuit court properly struck from the files what he had placed on file as his answer, by leave of the court of common pleas, after entry of judgment.

It is provided by sec. 5114 of the Revised Statutes, that, “ The court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process, or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case.”

From this section may be derived the power, in special cases, to make new parties after judgment, that there may not be a failure of justice. It is a power, however, that will be sparingly exercised, and with a cautious discretion. The statute being remedial, it should be liberally construed, but, with a view to rendering it operative in furtherance of justice. What it may accomplish towards obtaining such a result, might be reached, it may be, by resorting to a new and independent proceeding, in analogy to the chancery procedure by bill of review, or bill in the nature of a bill of review, but, when practicable, the rights of those interested in the subject matter in controversy, should be worked out in the pending proceeding, thus avoiding multiplicity of suits which is obnoxious to the law.

Where the facts require it, new parties may be brought in on appeal by amendment. Grant v. Ludlow, 8 Ohio St. 1; Babcock v. Camp, 12 Ohio St. 11; Morgan v. Spangler, 20 Ohio St. 38. And if so, it would seem to be a singular omission if, under the liberal provisions of the code and the practice in equity, no power could be found, in furtherance of justice, to admit new parties in the court below, though after judgment rendered. But that power, we think, may be found in the section under consideration.

When those who have sufficient interest in the result, are once brought in, after judgment, as new parties to the suit," the act of the court is not to be regarded as a matter of form only. They are parties for a purpose. If they have rights, their status as parties entitles them to set up those rights by cross-petition, answer, or other pleadings. They are not brought in as parties, only that a judgment by nil elicit may be entered against them. They thus become litigants in the cause, and are to be treated accordingly, nor can they, in our view, be deprived by an appeal of any remedial rights which have already accrued.

If, after judgment, one interested in the event of the cause becomes a party defendant, and answers, the court may, at the same term, treat the judgment as set aside, and re-examine the issues of fact or law, and re-enter the judgment. But, if before so doing, the answering party shall deem it desirable or expedient to exercise the privilege of appeal, he should not thereby lose, or hold only at the discretion of the appellate court, the remedial rights granted him by the court below in aid of justice. Those rights are of statutory origin, and their loss is not the penalty of appealing to a higher court.

But it is urged, that by the provisions in section 5225 of the Revised Statutes, “The circuit court shall have jurisdiction of certain cases as hereinafter provided by appeal; and the trial therein shall be conducted in the same manner as in the common pleas court, and upon the same pleadings, unless amendments are permitted or ordered by the circuit court.” If we consider this section in connection with section 5114, it will be apparent that amendments of pleadings, and the inserting of new allegations, may be permitted under both sections. But.there is nothing in the section regulating trials on appeal, that invalidates or renders nugatory amendments permitted under section 5114. If new parties and interests arise or are discovered after appeal, they may be brought under the cognizance of the circuit court, and section 5225 would cover cases of that class, as section 5141 would embrace interests and parties omitted and brought to the notice of the court of common pleas after judgment and before appeal. But the orders of the respective courts authorizing new parties to be made and new pleadings to be filed, are alike in the interest of justice, and alike to be sustained.

It is said, that the trial in the court of common pleas was not conducted upon any answer or pleading of the plaintiff in error, and that, therefore, his answer, filed after the entry of judgment, could not be considered on the trial in the circuit court. We are not inclined to construe strictly the words, “ same pleadings,” found in section 5225. Whatever the court of common pleas, in furtherance of justice, found it proper to incorporate during the trial term with the pleadings as a part thereof, and as essential to a just determination •of the rights of the parties while the case remained in that .court without appeal, and subject, at the will of the court, to further adjudication during the term, and which the transcript of the clerk, together with the original papers and pleadings delivered to the clerk of the circuit court showed had been filed in the court of common pleas, should.not, it seems to us, upon the trial in the circuit court, be ignored or treated as having no place among the pleadings in the court below. The judgment being suspended when .the appeal is taken and bond given, the appellate court, in its inquiry d'e novo into the merits of the action, might rightly consider pleadings which the judge in the court below had allowed to be filed, as affecting the rights of all parties in the case while litigating in that court.. The answer of Henry formed the basis of his appeal, and made the, main issue upon which his rights were to be determined. When, .therefore, his answer was suppressed, he was virtually deprived of the benefit of his appeal, to which he had been restored through his former proceeding in error. „

The order striking the answer of Henry from the files we regard a final order, and one reviewable on error. “ A judgment rendered, or final order made, by the circuit court, may be reversed, vacated, or modified by the supreme court.” Revised Statutes § 6710. “ An order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, .... is a final order which may be vacated, modified or reversed.” Revised Statutes, §6707. When the plaintiff in error was made party defendant, with leave to answer, he acquired substantial rights— the right of a litigant in the case — of which h¿ was effectually deprived when his answer was suppressed. By the order striking his answer from the files, his right to try the issues it made was directly affected, and as to him, at least for the time being, the order determined the action and prevented the judgment he sought.

■ In Carpenter v. Canal Company, 35 Ohio St. 307, after an order of sale was made in a foreclosure suit, the land was appropriated by a railroad company. Another mortgage creditor, by answer and cross-petition, sought to impeach the appropriation proceeding for fraud and to. foreclose his mortgage. The order dismissing such answer and cross-petition, as to the charge of fraud and the claim to foreclose, was declared a final order, which might be reviewed on error.

In Fuller v. Claflin, 93 U. S. 14, it was -held, that an order striking out an answer, as it ends the cause, leave's the action undefended, and confers a right to immediate judgment, is subject to review in the appellate court.

The case of Holbrook v. Connelly, 6. Ohio St. 199, is cited in behalf of the defendants in error. There, the plaintiff in the common pleas moved the court to strike out a part of an amended aúswer ; which motion was sustained. The defendant thereupon asked leave to file a petition in error to review and reverse the decision of the common pleas. Bartley, C. J., in delivering the opinion, remarked, that no final order, within the meaning of the Code of Civil Procedure, was shown to have been made, as it did not appear that the decision ■made “ in effect determined the action and prevented a judgment that for aught appearing the defendant might yet succeed in his defense to the action. As only a part, and it might be an immaterial part of the answer was struck out, the remainder might prove amply sufficient to secure instead of preventing a judgment for the defendant, and hence the language of the opinion.

The application made by Henry, after the order dismissing his answer, for leave to file his proposed answer, and the continuance of such application to the next term of the circuit court, did not take from the order its character of finality.

The application may properly be regarded as a separate and independent proceeding subsequent to the order, of which Henry need not avail himself unless he sees fit so to do. A decree, if final, will not be made interlocutory by a defendant’s motion at the same term to vacate it, and a continuance of such motion to the next term. The final order of the circuit court striking from the files and suppressing the answer of the plaintiff in error, should, in our opinion, be reversed and the cause remanded to the circuit court for further proceedings.

Judgment accordingly.  