
    In re Estate of Hamilton.
    (Decided June 27, 1940.)
    
      Messrs. Garhart & Garhart, for appellant.
    
      Messrs. Harder & Micldey and Mr. B. G. Moloney, for appellees.
   Guernsey, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Marion county dismissing an appeal on questions of law and fact from the Probate Court to the Common Pleas Court of that county. The order of the Probate Court appealed from was an order overruling the demurrer of the ancillary administrator of the estate of Samuel S. Hamilton, deceased, to an application made by one Frances H. Byers to remove the administrator.

It has been uniformly held by the courts of this state that an order, overruling a demurrer does not constitute a final order. Holbrook, Admr., v. Connelly, 6 Ohio St., 199; Hart v. Murray, 3 C. C., 431, 2 C. D., 243; Ryan v. Kroger Grocery & Baking Co., 56 Ohio App., 469, at 475 and 476, 11 N. E. (2d), 204; Federal Pipe & Supply Co. v. Dolby, 59 Ohio App., 143, 17 N. E. (2d), 397; 2 Ohio Jurisprudence, 137, Section 121.

Whether the order of the Probate Court, not final in character, from which the appeal on questions of law and fact was attempted to be taken to the Common Pleas Court in the instant case, was an order from which such an appeal might be taken is to be determined from the provisions of Section 12223-3 and 10501-56, General Code, as amended March 25, 1939 (118 Ohio Laws, 78), effective June 26, 1939.

As originally enacted, Section 12223-3, General Code (116 Ohio Laws, 105), provided:

“Every final order, judgment or decree of a court and, when provided by law, the final order of any administrative officer, tribunal, or commission may be reviewed as hereinafter provided, unless otherwise provided by law, except that appeals from judgments of Probate Courts and of justices of the peace upon questions of law and fact shall be taken in the manner now provided for in General Code Sections 10501-56 to 10501-61, inclusive, and Sections 10382 to 10398, inclusive, respectively. ’ ’

The amendment of Section 12223-3, above referred to, had the effect of eliminating, from the exception clause contained in the latter part of the section, the phrases “of Probate Courts and” and “Sections 10501-56 to 10501-61, inclusive,” and the word “respectively” appearing at the end of the section. This amendment comprehended eliminating from the exception contained in Section 12223-3, appeals on questions of law and fact from the judgments of Probate Courts.

Section 10501-56, G-eneral Code, as originally enacted (114 Ohio Laws, 336), provided that “appeal may be taken to the Comm on Pleas Court, by a person against whom it is made, or whom it affects, from any order, decision, or judgment of the Probate Court in settling the accounts of an executor, administrator, guardian and trustee, or of assignees, trustees or commissioners of insolvents;” and further provided for appeals of the character mentioned from other specified orders in other specified actions or proceedings in the Probate Court.

As amended, this section applies generally to appeals on questions of law and appeals on questions of law and fact from Probate Courts. As to appeals on questions of law, it provides: “From any final order, judgment or decree of the Probate Court, an appeal on a question of law may be prosecuted to the Court of Appeals in the manner provided by law for the prosecution of such appeals from the Court of Common Pleas to the Court of Appeals.” As to appeals on questions of law and fact from the Probate Court to the Common Pleas Court, which is an appeal of the character that the appeal in the instant case purports to be, it provides: “If, for any reason, a record has not been taken at the hearing of any matter before the Probate Court so that a bill of exceptions or a complete record may be prepared as provided by law in Courts of Common Pleas, then an appeal on questions of law and fact may be taken to the Court of Common Pleas by a person against whom it is made, or whom it affects, from any order, decision, or judgment of the Probate Court in the manner provided by law for the prosecution of such appeal from the Court of Common Pleas to the Court of Appeals. The Court of Common Pleas shall advance said matter for hearing.”

“It is an old and familiar rule, which is closely related to the doctrine of ejusdem generis, and to the rule that where an act contains special provisions they must be read as exceptions to a general provision in a separate earlier or subsequent act, that where there is in the same statute a particular enactment, and also a general one which in its most comprehensive sense would include what is embraced in the former, the particular enactment must be operative, and the general enactment must be taken to affect only such cases within its general language as are not within the provisions of the particular enactment. * * *.” 25 Ruling Case Law, 1010, Section 250.

Section 12223-3, General Code, as amended, contains general provisions relating to appeals of every character, while Section 10501-56, General Code, as amended, contains special provisions relating to appeals from a Probate Court, so that under the rule above mentioned the particular provisions of Section 10501-56, General Code, as amended, must be operative as to appeals from a Probate Court, and the general provisions of Section 12223-3, General Code, as amended, must be taken to affect only such cases within its general language as are not within the provisions of Section 10501-56, General Code, as amended.

The question as to whether an appeal lies from the order of the Probate Court attempted to be appealed from in the instant case is therefore to be determined from the provisions of Section 10501-56, General Code, as amended.

It will be noted that in the last-quoted clause of Section 10501-56, General Code, as amended, the order, decision or judgment from which it prescribes an appeal may be taken on questions of law and fact to the Common Pleas Court is not designated as a final order, decision or judgment.

“At common law, * * * a writ of error will lie only to a final judgment or an award in the nature of a final judgment, and the statutes generally provide that, except as otherwise provided, appeals, writs of error, exceptions, etc., may be taken only from or to final judgments, orders or decrees. It is the general rule, therefore, that an appeal, writ of error, exceptions, or other proceeding for review will not lie from or to an interlocutory decision unless it is expressly permitted by statute or constitutional provision.” 4 Corpus Juris Secundum, 180, Section 92.

It must be presumed that the words “order, decision, or judgment” as used in the last-quoted clause of Section 10501-56, General Code, as amended, in connection with the subject-matter of appeal, are used in their usual and ordinary sense in connection with the subject-matter, and, it not being expressly otherwise provided, comprehend only such orders, decisions and judgments as are final in their nature. This interpretation of these words as used, is in accord with the long-established practice in Ohio under which only orders final in their nature are reviewable, and it must be presumed that if the Legislature had intended to change this practice and make interlocutory orders the subject of review it would have unequivocally so stated.

For the reasons mentioned, the clause of Section 10501-56, General Code, as amended, comprehends only appeals from orders, decisions and judgments of Probate Courts that are final in their nature, and as the order in the instant case was not a final order an appeal did not lie from it. '

Furthermore, the order of the Probate Court appealed from involved only a question of law determinable from the original papers and the docket and journal entries of the Probate Court in the proceeding.

The last-quoted clause of Section 10501-56, General Code, as amended, permits appeals on questions of law and fact from the Probate Court to the Common Pleas Court under the circumstances therein specified, only where the order from which the appeal is attempted to be taken is determinative of a question of fact, any error in which determination is demonstrable only by a complete record or a bill of exceptions of the hearing at which the order was made.

As the order of the Probate Court appealed from does not involve the determination of a question of fact, it does not come within the purview of the clause mentioned and consequently no appeal on questions of law and fact lies from it, and the appeal cannot stand as an appeal on questions of law for the reason that there is no statutory provision permitting appeals on questions of law, as distinguished from questions of law and fact, from the Probate Court to the Common Pleas Court.

For the reasons mentioned, the Common Pleas Court did not have jurisdiction to review the order appealed from and properly dismissed the appeal for want of jurisdiction, and its judgment dismissing the appeal will therefore be affirmed at costs of appellant.

Judgment affirmed.

Klinger, J., concurs.

Crow, P. J.,

concurring. The judgment of the Common Pleas Court dismissing the appeal from the judgment of the Probate Court is, in my opinion, correct for the following reason: The so-called demurrer to the application for removal, whatever the demurrer may have been in legal effect, could not possibly have raised an issue of fact which is always necessary to an appeal on questions of law and fact; and, regardless of whether an appeal will lie from the Probate Court to the Common Pleas Court from an order other than a final one (which point need not, and therefore should not, be decided), there is no language whatsoever in Section 10501-56, General Code, conferring the right of appeal on questions of law from the Probate Court to the Common Pleas Court.  