
    PARKER, Plaintiff-Appellant, v ROSE, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4018.
    Decided June 4th, 1947.
    Isadore L. Margulis, Columbus, for plaintiff-appellant.
    Mayer & Mayer, Columbus, for defendant-appellee.
   OPINION

By HORNBECK, J.

Appellant recovered a judgment in the Municipal Court of the City of Columbus, Ohio, against the appellee who appealed from the judgment to the Common Pleas Court. The notice of appeal was regular and it and the bill of exceptions were filed within time. Defendant failed to file assignments of error and briefs within rule in the Common Pleas Court, and appellee there, appellant here, moved to dismiss the appeal, which was overruled. Appellant there, appellee here, moved the Court for leave to file the assignments of error and brief out of rule, which was sustained. Prom this order of the Common Pleas Court this appeal is noted, and thé parties have briefed the question presented. No motion has been filed to dismiss the appeal, but counsel for appellee here argues that there is no final order or judgment from which an appeal may be prosecuted.

This claim is well made. Manifestly, the order made was not a judgment which is pending determination on the appeal in the Common Pleas Court, nor is it,a final order, because it does not determine the action nor prevent a judgment.- Sec. 12223 GC. See also 2 O. Jur. 135; Longworth v Mullaly, 12 O. Dec. Rep. 366; The Knolwood Cemetery Co. v Cuyahoga County, et al., etc., 137 Oh St 388; Bankers Life Company v Waters, et al., 39 Oh Ap 343.

Inasmuch as appeals may be prosecuted to judgments or final orders only, and we have neither here, we cannot entertain this appeal and it will be dismissed.

WISEMAN, PJ, and MILLER, J, concur.  