
    BERRY v AMERICAN ENDOWMENT CO
    Ohio Appeals, 2nd Dist, Franklin Co
    No 2264.
    Decided March 2, 1933
    Hamilton & Kramer, Columbus, for plaintiff in error.
    Howard Morgan Jones, Columbus, and Vickery & Vickery, Bellevue, for Mover, defendant in error.
   BY THE COURT

Submitted on motion of defendant in error to strike the petition in error from the files and for dismissal upon the grounds:

1. Said petition was not filed within the time set by the General Code of the State of Ohio for the commencing of an action in error.

2. The order upon which said petition in error was predicated was not a final order upon which such proceeding could be based.

An examination of the record discloses that the error proceedings is directed to an order of the trial court overruling a motion to strike the fifth amended petition of defendant in error from the files and for other errors plainly apparent on the face of the record.

The second claimed error does not enlarge the scope of the petition in error upon the record.

We do not deem it necessary to pass upon the first ground of the motion because a determination of the second ground is dis-positive of this case and we think there is no question about the law controlling the facts as presented.

It is fundamental that error can only be prosecuted from a final order or judgment; insofar as pertinent to this case a final order is defined in §12258 GO as:

“An order affecting a substantial right in an action, when in effect it determines the action and prevents a judgment * * *.”

The overruling of the motion to strike the fifth amended petition was not a final order. The status of the case at that time was such that the defendant could have demurred' or answered. Either proceeding may have resulted favorably to the plaintiff in error.. It may be, as urged by counsel for plaintiff in error, that the refusal to strike the fifth amended petition affected a substantial right of the plaintiff in error but it did not meet the further requirement of the statute, namely, “determine the action and/or prevent a judgment.”

There are, of course, many cases supporting the position of the court but as the complete answer to the right of the plaintiff in error to proceed upon its petition in error is found in the statute quoted it is not necessary to incumber the record by needless citation of authorities. The motion to strike will be sustained.

HORNBECK, PJ, KUNKLE1 and BARNES, JJ, concur.  