
    The Midland Steel Products Co. v. Kehoe.
    (Decided November 26, 1934.)
    
      Mr. W. W. Campbell and Mr. George H. Lewis, for plaintiff in error.
    
      Mr. Ralph Emery and Mr. Harold J. Kehoe, for defendant in error.
   Richards, J.

On April 28, 1932, Ruth E. Kehoe was severely injured in an automobile collision which occurred on the McPherson Highway between Clyde and Bellevue. She brought this action against Auburn-Toledo Distributors, Inc., and The Midland Steel Producís Company to recover damages therefor. The case was tried on the amended petition, an answer thereto, and a reply, and was submitted on evidence to a jury. The jury returned a general verdict against Auburn-Toledo Distributors, Inc., in the amount of $10,000, but returned no verdict or finding for or against The Midland Steel Products Company.

The record contains no explanation as to why the jury was not directed to further consider the case as between the plaintiff and The Midland Steel Products Company, and as to that company the case still remains in the Court of Common Pleas undisposed of. It is true that the plaintiff, Ruth E. Kehoe, filed a motion to set aside the verdict “in favor of the defendant, The Midland Steel Products Company”, whereupon the court assumed to vacate and set aside that which had no existence, and granted a new trial as to the defendant, The Midland Steel Products Company. The Midland Steel Products Company filed in the case a motion for an order entering judgment in its favor, which was overruled by the court. Auburn-Toledo Distributors, Inc., filed a motion for a new trial, which was overruled, and judgment was rendered against that company on the verdict for $10,000 which had been rendered against it. Auburn-Toledo Distributors, Inc., did not prosecute error, and the case has never been retried as to The Midland Steel Products Company. That company, however, began this proceeding in error against Ruth E. Kehoe seeking to reverse the judgment averred to have been recovered against it by Ruth E. Kehoe.

The case in this court has been fully argued on briefs, and orally by counsel, who discuss the questions of practice involved and also discuss the case on its merits.

The plaintiff in error contends that the trial judge had no jurisdiction over it, as it is a resident of Cuyahoga county, and that the action could not be brought against it in Lucas county. That contention is not well-founded. The defendants were properly joined and a joint cause of action was set forth against them, both in the original petition and in the amended petition. The Midland Steel Products Company was properly brought into court by service of summons on it in Cuyahoga county. Even if this were not so, that company entered its appearance in the case by filing several motions assailing the pleadings on various grounds other than those which relate to jurisdiction of the person, and by filing a demurrer to the amended petition based on grounds other than those relating to want of jurisdiction, all without protest as to jurisdiction until it filed its answer to the amended petition. Maus v. Jones, 122 Ohio St., 459, 172 N. E., 157.

The serious question appearing upon the record is whether this proceeding in error will lie while the case is still pending in the Court of Common Pleas against The Midland Steel Products Company. That company, at the conclusion of all the evidence, moved for a directed verdict in its favor, which the court on consideration overruled, to which the company excepted. And although the case was submitted to the jury, no verdict was ever rendered for or against the Midland company, nor was any judgment rendered against it. The order overruling the motion for a directed verdict appears, of course, in the bill of exceptions, but the action of the court thereon was never journalized. It would be anomalous procedure if, with the case still pending undisposed of, the company could prosecute error.

The company relies on Jacob Laub Baking Co. v. Middleton, 118 Ohio St., 106, 160 N. E., 629, but that case only held that where the trial court refused to direct a verdict in favor of the defendant, and dismissed the cause without prejudice, the particular action was determined and a judgment thereby prevented in favor of the defendant, and that such action constituted a final order from which, error would lie. It seems plain from the language used that if the petition had not been dismissed by the court the decision would have been that error would not lie. That case only amounts to a ruling that the court may not properly dismiss an action without prejudice after a motion for a directed verdict has been made and submitted, and after the court has expressed its opinion upon the motion, and that such a dismissal is a final judgment to which error will lie. The position of the court is stated in the opinion of Jones, J., beginning at the bottom of page 117, as follows:

“While, strictly speaking, no judgment was entered on the court’s decision on the motions, its refusal to formally enter its judgment on the motions in accordance with its announcement after their submission, and its dismissal of the case, [these italics ours] terminated that action against the defendants and prevented a judgment in their favor.” (These italics by Judge Jones.)

Manifestly there would have been no such final judgment without a dismissal of the case.

Reliance is also placed on Toney v. Jenkins, 47 Ohio App., 248, 191 N. E., 828. That case has many features similar to the one at bar, but on the other hand there are various features which distinguish it from the present case. In the Toney v. Jenkins case a verdict had been returned for the defendant, while in the instant case there never was a verdict for or against The Midland Steel Products Company. The court in disposing of the Toney v. Jenkins case expressed the view that the Baking Company Case, supra, “would seem to bear out the claim that error could be prosecuted to the overruling of the motion for an instructed verdict”, but the court did not dispose of the case on that ground but on the ground that the trial court did not err in overruling the motion for an instructed verdict, and it therefore affirmed the judgment. The same result, in effect, was reached as would have been the ease had it dismissed the petition in error for want of a final judgment.

In the case at bar, with the action still pending in the trial court, and with no verdict or finding for or against The Midland Steel Products Company, we are forced to the conclusion that no final judgment has been rendered in the case as to that company, and that the petition in error must be dismissed.

Petition in error dismissed.

Lloyd, J., concurs.

Williams, J., concurs in judgment.  