Maloney v. Dayton Osteopathic Hospital

• Decision Date: 30 July 1959
• Citation: 169 N.E.2d 46,110 Ohio App. 245
• Parties: , 13 O.O.2d 21 MALONEY, Ex'x, Appellant, v. DAYTON OSTEOPATHIC HOSPITAL, a.k.a. Grandview Hospital, et al., Appellees.
• Court: Ohio Court of Appeals

Page 245

110 Ohio App. 245

169 N.E.2d 46, 13 O.O.2d 21

MALONEY, Ex'x, Appellant, v. DAYTON OSTEOPATHIC HOSPITAL, a.k.a. Grandview Hospital, et al., Appellees.

Court of Appeals of Ohio, Montgomery County.

July 30, 1959.

Syllabus by the Court

1. An order sustaining a motion to strike portions of a petition is interlocutory, and not a final order.

2. An order overruling a motion of plaintiff to modify a former order granting defendant leave to file such motion to strike, after answer day and where defendant was already in default, is interlocutory and not a final order from which an appeal on questions of law may be taken.

Tracy & Tracy, West Carrollton, and James C. Baggott, Dayton, for appellant.

Curtner, Brenton & Selva, Dayton, for appellees.

CRAWFORD, Judge.

This case is before us upon a motion of the defendants, appellees herein, to dismiss the appeal.

Plaintiff, appellant herein, has appealed on questions of law from an order of the Court of Common Pleas sustaining a motion to strike certain portions of the petition and from an order of that court overruling a motion of plaintiff to modify a former order granting defendants leave to file the motion to strike after answer day when defendant was already in default.

No judgment has been entered and no order made other than those appealed from.

The present motion of defendant to dismiss the appeal is based upon the contention that there is no final order which may be appealed within the provisions of Section 2505.02, Revised Code.

'* * * ordinarily an order overruling or sustaining such motions is merely interlocutory and not final, and will not form the predicate for an appeal on questions of law.' 2 Ohio Jurisprudence (2d), 614, Appellate Review, Section 44.

'As a general rule the sustaining or overruling of a motion directed to pleadings, which does not have the effect of a judgment of dismissal or the equivalent upon the losing party, and which actually leaves the case still pending in the trial court, has been held to be interlocutory and not final, and not to form the basis for appeal on law questions.' 2 Ohio Jurisprudence (2d), 614, Appellate Review, Section 45.

Numerous decisions, including several in this court, support the text quoted. State ex rel. Erman v Gilman, 126 Ohio St. 379, 186 N.E. 4; Ryan v. Kroger Grocery & Bakin Co., 56 Ohio App. 469, 11 N.E.2d 204 (containing a definition of a final order); Equitable Securities Co. v. McDonald, 14 Ohio App. 56; Mullett v. De Rubertis, Ohio App., 88 N.E.2d 577; Sellers v. Palumbo, Ohio App., 36 N.E.2d 34; National Guarantee & Finance Co. v. Russell, 25 Ohio Law Abst. 483 (involving a demurrer).

Clearly the order granting leave to file the motion after answer day is also interlocutory and not final.

If the party against whom the ruling is made amends the pleading he waives the right to claim error in such ruling, inasmuch as the amended pleading supersedes the original. Grimm v. Modest, 135 Ohio St. 275, 20 N.E.2d 527; Bingham v. Nypano R. Co., 112 Ohio St. 115, 119, 147 N.E. 1; Sterling v. Hanley Motor Sales, Inc., 87 Ohio App. 362, 95 N.E.2d 273; Starr v. Gebhart, Ohio App., 130 N.E.2d 358; Herzig v. Hunkin Conkey Construction Co., Ohio App., 101 N.E.2d 255. See Davies v. Columbia Gas & Electric Corp., Ohio App., 79 N.E.2d 327.

The pleader may choose whether he will stand upon...