
    Fulton, Appellant, v. Madlener, Appellee.
    (Decided November 29, 1937.)
    
      Mr. M. M. Shoemaker and Mr. O. S. Bryant, for appellant.
    
      Mrs. Ophelia Emden, for appellee.
   Ross, P. J.

This is an -appeal on questions of law from the Court of Common Pleas of Hamilton county, Ohio.

The action was instituted to recover damages for personal injuries alleged to have been inflicted by the defendant upon the plaintiff in the operation of an automobile.

The answer set up the defense of a general denial and contributory negligence.

The record before us shows that upon the day of trial, after having previously filed an answer, the attorney of record for defendant withdrew from the case.

A jury was impaneled and under directions of the court rendered a verdict for $15,000 for the plaintiff.

A motion, for a new trial was filed and granted, “for good canse shown.”

No bill of exceptions was filed.

Motion to dismiss the appeal was made upon the ground that the granting of a motion for a new trial is not such a final order as to permit appeal therefrom to this court.

Section 12223-2, General Code, as effective August 23, 1937, provides as follows:

“An order affecting a substantial right in an action, when in effect it determines the action and prevents a judgment, or an order affecting a substantial right made in a special proceeding, or upon a summary application in an action after judgment, or an order vacating or setting aside a general verdict of a jury and ordering a new trial, is a final order which may be reviewed, affirmed, modified, or reversed, with or without retrial, as provided in this title.”

This section (Section 12223-2, General Code), as last amended, is the result of repeated amplification and amendment. Its next previous form, as found in 116 Ohio Laws, 105, approved April 19, 1935, was:

“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 reviewed, affirmed, modified, or reversed with or without retrial as provided in this title. ’ ’

The immediate predecessor of this section was Section 12258, General Code, and was a re-enactment of Section 6707, Revised Statutes. 51 Ohio Laws, 57, Section 512, at page 145.

Now these various sections previous to the last amendment have been the subject of consideration by the Supreme Court of Ohio, which has consistently recognized the legislative action contained therein in defining a final order as not violative of any constitutional limitation.

In Jacob Laub Baking Co. v. Middleton, 118 Ohio St., 106, at pages 118 and 119, 160 N. E., 629, the court says:

“Section 12258, General Code, defines a final order as follows:
“ ‘An order affecting a substantial right in an action, when in effect it determines the action and prevents a judgment. ’
“This court has held that a final order, as defined in that section, is comprehended within the term ‘judgment,’ and that it is as reviewable since the adoption of said constitutional provision as it was prior thereto. Chandler & Taylor Co. v. Southern Pacific Co., 104 Ohio St., 188, 135 N. E., 620; Cox v. Cox, 104 Ohio St., 611, 136 N. E., 823.
“The refusal of the court to direct a verdict at the close of the entire evidence and to render judgment thereon is analogous to its refusal to enter judgment on the special findings of the jury when they are found to be inconsistent with the general verdict. In either case the party has been deprived of a judgment to which he may be entitled. If so entitled, the action of the trial court in overruling a motion for a directed verdict and for judgment constitutes a final order which may be reviewed. Davis v. Turner, 69 Ohio St., 101, 68 N. E., 819. In that case, Price, J., speaking of the refusal of the trial court to render judgment on special findings of the jury, said, at page 111 (68 N. E., 822):
“ ‘Is there no direct remedy in this court to review the decision of that court, and correct its error, if any has been committed in overruling the motion for judgment? If not the party has lost a valuable right which the law has furnished him for a very clearly expressed purpose.’
“A case from Hocking county was presented to this court which, bore a resemblance to the Turner case, supra. The files disclose that at the close of the evidence a defendant made two motions: First, for judgment on the special findings after a general verdict for the plaintiff; and, second, as a precautionary measure, it filed a motion for a new trial. The trial court overruled the first, and sustained the second, the motion for a new trial. On error, the Circuit Court reversed the Common Pleas Court for overruling the motion for judgment on the special findings, and entered judgment in favor of the defendant below — a judgment which the trial court should have rendered. The judgment of the Circuit Court was affirmed, in an unreported case, on the authority of the Turner case, supra. See Chris Holl Hardware Co. v. Logan Brick Supply Co., 84 Ohio St., 455, 95 N. E., 1144.”

In Jones v. First National Bank, 123 Ohio St., 642 at page 644, 176 N. E., 567, the Supreme Court says:

“The Legislature has determined what constitutes a final order, in Section 12258, General Code, as follows: ‘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.’ ”

See also McGowan v. Rishel, 125 Ohio St., 77, 79, 180 N. E., 542.

In Cincinnati Goodwill Industries v. Neuerman, 130 Ohio St., 334, 199 N. E., 178, the court says:

“It appears from the record that the trial court overruled motions of the defendant for a directed verdict, as well as'a motion for judgment contra verdict, and granted a motion for a new trial. Thereupon defendant prosecuted error to the Court of Appeals, which dismissed the petition in error and cross-petition in error for the reason that there was no judgment or final order in the Court of Common Pleas.
"The Court of Appeals granted an order to certify the record on the ground of conflict with Toney v. Jenkins, 47 Ohio App., 248, 191 N. E., 828, and Union Gas & Electric Co. v. Hill, 49 Ohio App., 20, 194 N. E., 884.
“On consideration whereof it is ordered and adjudged that the judgment of said Court of Appeals be, and the same hereby is, reversed and the cause is remanded to the Court of Appeals for the reason that the action of the trial court in overruling the motions of defendant for a directed verdict and for judgment contra. verdict and granting the motion for a new trial constituted a final order from which error may be prosecuted. Therefore the Court of Appeals had jurisdiction. Jacob Laub Baking Co. v. Middleton, 118 Ohio St., 106, 160 N. E., 629; Chris Holl Hardware Co. v. Logan Brick Supply Co., 84 Ohio St., 455, 95 N. E., 1144; Davis v. Turner, 69 Ohio St., 101, 68 N. E., 819.”

In Chandler & Taylor Co. v. Southern Pacific Co., 104 Ohio St., 188, 135 N. E., 620, the first and second paragraphs of the syllabus are:

‘ ‘ 1. Such interpretation must be given a provision of the Constitution as will promote the object of the people in adopting it, and narrow and technical definitions of particular words should be avoided. In obedience to this rule the term ‘judgments’ appearing in Section 6, Article IV of the Constitution as amended in 1912, is used in its broad and generally accepted meaning and not in that restricted meaning formerly given it by the Legislature in Section 11582, General Code. The term comprehends all decrees and final orders rendered by a court of competent jurisdiction and which determine the rights of parties affected thereby.
“2. An order vacating a default judgment upon motion of the defendant, filed at the same term, but more than three days after its rendition, is not a final determination of the rights of the parties and is not reviewable unless the court abuses its discretion in making it. ”

Several passages of the opinion, in the Chandler & Taylor Co. case, written by Judge Jones, are peculiarly pertinent. We quote from the opinion, page 190 et seq.:

“The judicial article of our present Constitution, Section 6, Article IV, provides that the Court of Appeals shall have jurisdiction ‘to review, affirm, modify or reverse the judgments of the Courts of Common Pleas,’ etc. In their brief counsel for defendant in error state the question involved as follows : ‘ The only question in this case is the meaning of the word “judgment” in Section 6 of Article IV of the Constitution of Ohio as amended in 1912. ’ However the same counsel contend that if the word ‘judgment’ in that article is broadly construed so as to comprehend final orders, no such final order as would be reviewable by the Court of Appeals was made by the Court of Common Pleas. On the other hand, counsel for plaintiff in error ask that the word ‘judgment’ in the judicial article ‘should be given a broad and not a restricted meaning. ’
“In the case of Cincinnati Polyclinic v. Balch, 92 Ohio St., 415, this court decided that the Court of Appeals acquired its jurisdiction under the terms of Section 6, Article IV aforesaid, and that' the general assembly had no power either to enlarge or to limit that jurisdiction. The doctrine was approved by this court in later cases. Prior to the adoption of the Constitution of 1912 the Code provided (Section 12247) that judgments and final orders made by the Courts of Common Pleas were reviewable by the Courts of Appeals. At the time of the adoption of that Constitution our Legislature had given specific definition to the terms ‘judgment’ and ‘final order.’ (Italics ours.)
“Section 11582, General Code, defined a judgment to be ‘a final determination of the rights of the parties in action.’ Section 12258, General Code, defined a final order to be one (a) ‘affecting a substantial right in an action, when in effect it determines the action and prevents a judgment,’ or (b) ‘an order affecting a substantial right’ made either in a special proceeding or upon a summary application in an action after judgment.
“In the instant case, while the action of the Common Pleas Court in rendering judgment by default would be a judgment, its subsequent action in setting aside such default upon the summary application of the defendant, came within the definitive term of the latter section and was an order as therein defined.
“It is here contended by defendant in error that by the use of the term ‘judgments’ in the Constitution of 1912, final orders were thereby definitely excluded and are not longer reviewable. While this phase of the controversy was not before us it was queried by the judge delivering the opinion in Thompson v. Denton, 95 Ohio St., 333, 340. Were we to give a restricted meaning to the term ‘judgment,’ employed in Section 11582, we might be forced to the conclusion that those who wrote the Constitution of 1912 did not intend to embrace final orders as being within the appéllate jurisdiction of the Supreme Court and the Court of Appeals.
“When the provisions of the judicial article were under consideration by the Constitutional Convention there is nothing in the history of that body, nor in its discussion, which tends to show that an order affecting the substantial rights of litigants, whether made in an action, or in a special proceeding, or in a summary action after judgment, could not thereafter be reviewed by a higher court. On the other hand, both in its discussion and in its submission to the people stress was laid upon the fact that a litigant should have both trial and review.
“We appreciate the gravity of the legal problem here involved. But in its solution this court cannot adopt a construction so narrow as to deprive litigants of remedies enjoyed since the adoption of our civil code of procedure. Our bench and bar of this and preceding generation knew that the definitions of ‘judgments’ and ‘final orders’ had been engrafted upon our civil code and that our remedial procedure embraced the review of final orders; and undoubtedly those who framed the Constitution of 1912 did not contemplate a restriction of those civil remedies continuously employed for a period of more than sixty years. While we may not permit the conferment of legislative jurisdiction upon the Court of Appeals under our present Constitution, it is permissible to define the term ‘ judgments’ as used in the Constitution. At common law the term was used in a restricted sense. Lexicographers and courts have variously defined it, some giving it a restricted and others a broad and comprehensive meaning. We are satisfied that in order to effectuate the purpose of those who framed this amendment, and in order to promote the object of the people in its adoption, a technical definition should be disregarded and a broad and comprehensive meaning should be adopted. We, therefore, hold that it comprehends de crees and final orders rendered by a court of compe tent jurisdiction and which determine the rights of parties affected thereby. Were we to arrive at any other conclusion than herein announced a review of a large number of final orders affecting the substantial rights of litigants would be denied.
“An examination of the reported cases in this state will disclose that there are a large number of final orders which have always been reviewable by our appellate courts, and, if we should hold to the strict definition of the term ‘judgment,’ as contended for, not only would the right of review be denied to litigants in such cases, but the Legislature would be powerless to provide a remedy by proceedings in error. And while this feature of the case has not been heretofore decided by this court, final orders made since the adoption of our amended Constitution have been reviewed by the Court of Appeals and the Supreme Court in the following cases: Continental Tr. & Sav. Bk. Co. v. Home Fuel & Supply Co., 99 Ohio St., 453; Gorey v. Black, 100 Ohio St., 73, and First National Bank of Dunkirk v. Smith, 102 Ohio St., 120.” (Italics ours.)

Again, in the case of Cox v. Cox, 104 Ohio St., 611, 136 N. E., 823, the Supreme Court says:

“It appears from the record that this was a proceeding wherein plaintiff in error filed his motion to set aside the judgment of the Court of Common Pleas dismissing his petition for divorce. That motion was overruled by the Court of Common Pleas; whereupon plaintiff in error instituted proceedings in the Court of Appeals, seeking to reverse the action of the lower court in refusing to set aside its former order or judgment. The Court of Appeals, in its journal entry found, 'that it is without jurisdiction to review, affirm or reverse the order of the Common Pleas Court denying the motion to set aside the judgment rendered in said court, for the reason that said order is not a judgment.’ Thereupon the Court of Appeals dismissed the proceeding in error for want of jurisdiction to entertain and determine the same.
“On consideration of this record, it is adjudged by this court that the judgment of the said Court of Appeals be, and the same is hereby, reversed on the authority of Chandler & Taylor Co. v. Southern Pacific Co., ante, 188, and this case is remanded to the Court of Appeals, requiring it to entertain jurisdiction of said proceeding in error, and that it consider and determine the questions arising in said proceeding in error.”

Such definition, however, was in the code at the time of the constitutional amendment in 1912.

One of the earliest decisions holding the granting of a new trial not to be a final order and reviewable is Conord v. Runnels, 23 Ohio St., 601. In this case the court says:

“We see no error in the judgment of the District Court. The first petition in error was filed before any final judgment had been entered in the cause, and was rightfully dismissed as having been prematurely filed. The second petition in error was not prematurely filed, but we think the ground of supposed error on which it is made to rest can not be sustained. A motion for a. new trial is addressed to the sound discretion of the court; and although it is well-settled law that error will lie, in a proper case, where a new trial has been refused, we know of no case in which it has been held to lie where a new trial has been allowed and had, and where the court had power to grant a new trial, and its order granting such new trial is not made ground of error by statutory provision(Italics ours.)

In Neuzel v. Village of College Hill, 81 Ohio St., 571, at 572, 91 N. E., 1135, the court says:

“An order granting a motion for a new trial on the ground that the verdict is not sustained by the evidence, made in an appropriation proceeding by a municipal corporation, is not an order affecting a substantial right, for the reversal of which a petition in error can be prosecuted before the final disposition of the case. Conord v. Runnels, 23 Ohio St., 601, followed. ”

In Young v. Shallenberger, 53 Ohio St., 291, 41 N. E., 518, the fourth paragraph of the syllabus is:

‘ ‘ The overruling of a motion for a new trial is not a final order to which error can be prosecuted.”

It is thus apparent that although a final order is comprehended by the term “judgment,” as used in Section 6 of Article IV of the Constitution, it must have the same degree of finality as a judgment.

It is difficult to see how the assignment of error involved in the granting of a motion for a new trial can affect a determination of whether it is or is not a final order. The fact that granting such motion may have constituted an abuse of discretion reposing in the trial judge does not more surely determine the rights between the parties or more definitely affect a substantial right than a motion improperly granted, say upon the weight of the evidence. Considering the statute before the recent amendment, it cannot be successfully maintained that the granting of a motion for a new trial, for any reason, comes within the definitions of a final order and judgment, as recognized by the people in Section 12258, General Code, and Section 11582, General Code, as they existed at the time of the adoption of the Constitution of 1912, when the jurisdiction of this court both at law and in chancery was definitely established. Cincinnati Polyclinic v. Balch, 92 Ohio St., 415, 111 N. E., 159.

While the granting of a motion does affect a substantial right of the party in that it prevents a judgment, predicated upon the verdict, it does not by any stretch of construction, no matter how liberal, determine the action, or result in a final determination of the rights of the parties.

Up to the recent amendment, these characteristics have been consistently held by the Supreme Court to be requisite to permit review by this court of orders of trial courts. What then is the effect of the amendment!

The Legislature has added to the scope of a final order as formerly recognized an element which, if it had existed in statutes at the time of the adoption of the Constitution of 1912, in the presence of the cases previously noted herein, would have at least pro tanto excluded the inclusion of a final order, as so defined, within the purview of the term judgment, which in the last analysis, is what this court, by virtue of the Constitution of 1912, is permitted to review. It was the characteristic of finality that justified the including of final orders within the term ‘ ‘ judgment. ’ ’ Had it been otherwise, any enactment of the Legislature then existing would have been ineffective to widen the jurisdiction of this court as fixed by the Constitution.

It must be concluded, therefore, that the Legislature, having amplified the definition of a final order to such an extent that it now is inconsistent with the definition of a judgment, by including an order of the trial court not finally determinative of the rights of the parties, has overstepped the bounds fixed by the Constitution, as construed in Cincinnati Polyclinic v. Balch, supra, determining the jurisdiction of this court, and to such extent Section 12223-2, General Code, is unconstitutional.

The motion to dismiss the appeal is, therefore, granted.

Appeal dismissed.

Hamilton and Matthews, JJ., concur.  