May Co. v. Bailey Co.
| Citation | 81 Ohio St. 471,91 N.E. 183 |
| Decision Date | 23 February 1910 |
| Docket Number | 11575 |
| Parties | The May Company v. The Bailey Company. |
| Court | United States State Supreme Court of Ohio |
Order for temporary injunction - In suit for ultimate injunction - Not a judgment or final order - Cannot be reviewed by circuit court, when.
An order of the court of common pleas granting a temporary injunction in a suit in which the ultimate relief sought is an injunction, is not either a judgment or a final order which may be reviewed by the circuit court on petition in error.
The parties are corporations and rivals in the conduct of department stores in the city of Cleveland. The Bailey Company brought suit in the court of common pleas to enjoin The May Company from further proceeding in a course of unlawful competition by interfering with its contractual rights and property in trading stamps, and unlawfully and fraudulently diverting business. The petition alleged the details of the conduct of the defendant which was alleged to be unlawful, and concluded with a prayer that during the pendency of the action the defendant might be enjoined from continuing its interference, and that upon the final hearing such injunction might be made perpetual, and for general relief. Shortly after the filing of the petition the common pleas court granted a temporary injunction in accordance with the prayer of the petition. The May Company filed a petition in error in the circuit court to reverse the order of the court of common pleas allowing the temporary injunction. The petition in error was dismissed in the circuit court upon the ground that the order of the common pleas court was not reviewable upon error, and that order of dismissal is assigned as error here.
Messrs Kline, Tolles & Goff, for plaintiff in error, cited and commented upon the following authorities:
Burke v. Railroad Co., 45 Ohio St. 631; Railway Co. v. Hamilton, 3 C. C., 455; Furniture Co. v. Railroad Co., 7 N. P., 640; Missionary Society v. Ely, 56 Ohio St. 405; Sections 6707 and 6709, Revised Statutes.
Mr Thomas H. Hogsett and Messrs. M. B. & H. H. Johnson, for defendant in error, cited and commented upon the following authorities:
Village of Canfield v. Brobst, 71 Ohio St. 42; 2 High on Injunctions Section 1693; Burke v. Railroad Co., 45 Ohio St. 631; Railway Co. v. Burke, 10 Dec. Re., 136, 20 W. L. B., 287; Dustin v Bauer, 11 W. L. B., 191; Missionary Society v. Ely, 56 Ohio St. 405.
Counsel for the plaintiff in error rely upon the case of Burke v Railway Company, 45 Ohio St. 631, as authority for the conclusion that the order of the court of common pleas in this case was reviewable under Section 6709 as a final order and that it is within the definition of a final order as given in Section 6707, Revised...
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