
    FEDERAL PIPE & SUPPLY CO v DOLBY
    Ohio Appeals, 6th Dist, Lucas Co
    Decided May 16, 1938
    Edgar M. Flowers, Toledo, for appellant.
    George S. Moss, Toledo, for appellee.
   OPINION

By CARPENTER, J.

In the Municipal Court of Toledo the plaintiff recovered a judgment. The defendant filed an appeal to the Common Pleas Court of Lucas County, following the procedure as provided in the Appellate Procedure Act, §12223-1 GC et seq.. Plaintiff filed a motion to dismiss that appeal for the reason that the attempted appeal was not perfected-as required by §1579-310 GC, a section of the Municipal Court Act of Toledo. This motion was overruled, and from that action of the Common Pleas Court the plaintiff appealed to this court.

Here the defendant has moved to dismiss this appeal “for the reason no final order has béen made ixx the court below.” This motion must be granted for the reason stated. This situation presents the question: Is the overruling of a motion to dismiss an appeal' a final order from which an appeal may be taken? §12223-2, GC, defines a final order. This definition is not materially different than it was when first enacted as §512 GC of the Code of Civil Procedure, 51 Ohio Laws 145, and later became §6707 Revised Statutes. The effect of this section was tersely discussed in Holbrook, Admr. v Connelly, 6 Oh St 199, where review was sought of various rulings of the trial court on demurrers and motions to the pleadixxgs, and the court said:

“It does not appear that either of the decisions made, ‘in effect determine the action and prevented a judgment.’ For aught that appears, the defendant may yet succeed in his defense to said action. The record, therefore, discloses no foundation for a pi'oceeding in error.”

In Thatcher v Watson, 51 Oh St 561. the court said an order, “overruling the motion to dismiss the appeal, is not a final order.” This rule was adhered to in Lowellville Coal Mining Co. v Zappio, 80 Oh St 458, 469, 89 NE 97, and followed in Home Bldg. & Realty Co. v Blasberg, 81 Oh St 482, 91 NE 1131.

The lower court report of the latter case appears in 16 C. C. (N.S.) 504, 28 C.D. 683. In similar eases McArthur Bros. v Central Trust Co.,; Broadhead v Ohio Southern Rd. Co., 21 C.C., 654, 656, 12 C.D. 149, 150, the reasons for this principle are discussed and that judgment was affirmed 63 Oh St 593, 60 NE 1129.

The defendant’s motion to dismiss this appeal must be granted, and it is not necessary at this time to consider or discuss the the action of the Common Pleas Court in overruling the plaintiff’s motion to dismiss the appeal to that court.

Appeal dismissed.

LLOYD and OVERMYER,, JJ, concur.  