
    Murphy v. Bliss et al.
    
      Court of Appeals — Error proceedings — No final order or judgment below — Trial court overruled motion for judgment notwithstanding disagreement of jury — And for vacation of overruling motion for directed verdict — Sections 1221 A and 12258, General Code — Section 6, Article TV, Constitution.
    
    Action of trial court in overruling motion for directed verdict for plaintiff, and, after jury was discharged after failure to return verdict, in overruling motion to vacate judgment on previous motion and that court enter judgment for plaintiff notwithstanding jury’s failure to return verdict for plaintiff, held not “judgment” rendered, or “final order” made, under Sections 12247 and 12258, General Code, which could be reviewed by error proceedings to Court of Appeals, under Article IV, Section 6 of the Constitution.
    (Decided January 24, 1927.)
    Error: Court of Appeals for Lucas county.
    
      On Motion to dismiss.
    
      Mr. John P. Mantón, for plaintiff in error.
    
      Messrs. Bitter é Brumback, for defendants in error.
   Culbert, J.

This ease originated in the municipal court of the city of Toledo, where plaintiff in error was plaintiff and defendants in error were defendants, and they will be so designated in this opinion. Upon trial in the municipal court a judgment was rendered in favor of the defendants. An appeal to the court of common pleas of Lucas county was duly perfected, where the case was finally tried to a jury at the September, 1926, term of that court, with the result that the jury could not agree upon a verdict and was discharged by order of the court.

At the close of all the evidence, and when both parties had rested, the plaintiff interposed the following motion:

“Plaintiff comes at the close of all the evidence, and, both parties having rested their case upon the evidence adduced, moves the court to direct the jury to return their verdict in favor of plaintiff and against defendants Daniel W. Bliss and Frank B. Chester in the sum of $767.”

, The trial court overruled the motion, and exceptions were saved. After it was determined that the jury could not agree upon a verdict, and after the discharge of the jury, and within due time, the plaintiff filed a motion of which the following is a copy:

“Comes the plaintiff and moves the court to vacate its judgment heretofore entered in this cause, overruling the motion of plaintiff presented on the trial of this case, after all the evidence was in and both plaintiff and defendants had rested, to direct the jury to return its verdict in favor of plaintiff and against the defendants, and that the court now enter judgment for plaintiff and against the defendants Daniel W. Bliss and Frank B. Chester in the amount set forth in said former motion, notwithstanding the failure of the jury to return its verdict in favor of plaintiff.”

This motion was overruled by the trial court, to which the plaintiff duly excepted. Proceedings in error are now prosecuted here to obtain a reversal of the alleged judgment of the trial court in overruling above motions; hence the only question involved here is whether or not the action of the trial court in overruling the motions is a judgment rendered, or final order made, from which error proceedings can be prosecuted.

The defendants have filed a motion to dismiss the petition in error, alleging as a reason “that the same is filed without authority of law.” Section 12247, General Code, in part, is as follows:

“A judgment rendered or final order made by a court of common pleas or by the superior court of Cincinnati or by the municipal court of Cleveland, or by a judge of any of such courts, may be reversed, vacated, or modified, by the Court of Appeals having jurisdiction in the county wherein the common pleas, superior or municipal court is located, for errors appearing on the record.”

The record does not disclose that any judgment whatever was rendered by the court below, and the action of the trial court in overruling said motions is not a final order as contemplated by the statute. What is a final order? Section 12258 of the General Code defines the same to be:

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

We have examined Section 6, Article IV, of the Constitution of Ohio, and find nothing there in conflict with the conclusions here reached.

In effect the motion interposed by plaintiff in the trial court at the close of all the evidence is equivalent to a demurrer to the evidence. For the reasons here given, the motion to dismiss the petition in error will be allowed.

Petition in error dismissed.

Richards and Williams, JJ., concur.  