
    APPEAL PREMATURELY TAKEN.
    Circuit Court of Cuyahoga County.
    Samuel Pickersgill v. William J. Hunt et al.
    Decided, June 7, 1909.
    
      Appeal on Dismissal of Gross-Petitions Tending Equitable Defense — Issues — Tendered By Petitions Untried — Appeal Premature.
    
    Suit was brought upon a building contract and for extras; the defendant, by cross-petition, asked that the contract be reformed to include modifications of it claimed to have been made by the parties; hearing on the cross-petition was had to the court, before the issues made by the petition were tried to a jury and the court dismissed the cross-petition, whereupon, and before trial of issue tendered by the plaintiff, the defendant appealed. Held: As the judgment on the equitable cause of action set up in the cross-petition did not dispose of the entire case there was no final order and the appeal was prematurely tairen and must be dismissed.
    
      L. B. Ware, for plaintiff.
    
      Smith, Taft & After, contra.
   Marvin, J.; Winch, J., and Henry, J.,

concur.

The plaintiff sued the defendants, claiming to recover a balance due upon a building contract, and also to recover for certain extras which he claimed to have furnished for the building named in the contract, and he prayed to foreclose a mechanic’!? lien arpón the property described in the petition.

The defendants answered, denying some of the things, averred in the petition, and admitting some of them, and filed a cross-petition in which they aver that the contract sued upon, which was in writing, was subsequent to its being signed, modified in such wise as that some, if not all of the extras for which payment was claimed, in the petition, were to be included in the contract itself, and tin y prayed that the court modify the contract upon which suit was brought. This claim clearly raised a question to be tried by the court, whereas the other issues made in the case were triable to a jury. The court "heard the evidence, upon the matter of the modification of the contract, and refused to make the modification, and dismissed the cause of the defendant’s cross-petition. The language of the entry is:

'•'Feb. 10, 1Í)0Í). To Court: This caíase came on to be heard on the issues joined upon ihe first cause of action set forth in the cross-petition of the defendants, "William J. and Sarah Hunt, and the evidence, vra-,- nr- red by counsel and submitted to the court; and upon due eom-iderafion thereof, the court find in favor of the plaintiff and against said defendants on said first cause of action and ihe same is dismissed. And it is considered that said plaintiff recover of said defendants his costs made on said first cause of action. Judgment is rendered against said defendants for their costs thereto.”

From this .judgment the defendants, William J. and Sarah Hunt,, appealed to this court. Motion is made to dismiss that appeal. This motion is well taken. Our statute (Section 5236, Revised Statutes of Ohio), provides only for appeals (except in special proceedings) from a final order, and a final order is defined in Section {>707. Revised Statutes of Ohio, which reads:

“An order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment,, and an order affecting a substantial right made in a special proceeding or aipon nummary application in an action after judgment is a final order which may be vacated, modified or reversed, as provided in this title.”

!l is i rae ¡hnt this definiíimi of a final order is in the chapter relatin'', to proceedings i.i error. bu! .'he circuit court in the case of Williams v. Wynn 10 C. C. 427. treats it, and we think properly, as 'being tie* de udiion of a final order as well for appeals as in procoedinjni in error.

"UTo have examined idle ar.iboritios to which attention has been called by the appellate, buf are nimble to reach the conclusion reached by him. No think the appeal was prematurely taken. The case sliotild have beer. hied, and when it is tried an appeal can be taken. The, couri. will try the appeal and then being-bound by the determination of the questions submitted to the jury in the trial court, can modify its decree if it should find that a revision of the in bnmient should he made in such wise as to reach the proper result. 4Ye think the proper course is pointed out in the case of Buckner v. Mear, 26 O. S., 515. An examination of this cane indicates, and we think, clearly, that no appeal can he taken from the decision cu the equity branch of the case until the cane lias been finally disposed of in the common pleas. Of course where the determination of the' equity question determines the entire case, an appeal would forthwith be bad, because tbe ease so far as any trial of it could be had in the court of common pleas, is ended. But that is not this ease. Eero, the court held against the claim made by the defendants for equitable relief. The result is, as already indicated, that the appeal is dismissed.  