
    BAILEY, Appellee v NEALE et, Appellees and WEISS AND KESLAR, INC., Appellant
    Ohio Appeals, 9th District, Summit County.
    No. 3313.
    Decided Oct. 24, 1940.
    Bailey & Bailey, Akron, for the Motion.
    C. H. McGinley, Akron, Contra. ■
   OPINION

By STEVENS, J.

In the trial court an action to marshal liens was filed, and on April 6, 1940, after trial to the court, an entry of judgment determining the priority of liens and ordering their payment, was spread upon the journal. On April 9, 1940, a motion for a new trial was duly filed.

On April 25, 1940, a notice of appeal on questions of law and fact was filed, and on May 7, 1940, the motion for a new trial was overruled by the Court of Common. Pleas.

A motion to dismiss the appeal in this court has been filed, alleging as the ground therefor that this court is without jurisdiction to hear the appeal because it was prematurely filed.

An almost identical situation was presented to the Court of Appeals of the First District, in the case of The Liberal Savings & Loan Co. v The Frankel Realty Co., et al., 46 Oh Ap 97. It was there decided that if the judgment entered in an equity action was a final judgment, and a motion for a new trial was filed, and thereafter, but before a ruling was had upon the motion for a new trial, an appeal on questions of law and fact was duly filed, such appeal constituted a waiver or withdrawal eo instante of the motion for a new trial. A motion to dismiss the appeal for lack of jurisdiction was in that case overruled.

That case seems to us to be decisive of the motion herein.

The motion to dismiss will be overruled.

WASHBURN, PJ., & DOYLE, J., concur.  