Mitchell v. Crain, 5104

• Decision Date: 01 December 1958
• Docket Number: No. 5104,5104
• Parties: , 9 O.O.2d 189 MITCHELL et al., Appellees, v. CRAIN et al., Appellants. *
• Court: Ohio Court of Appeals

Page 143

108 Ohio App. 143

161 N.E.2d 80, 9 O.O.2d 189

MITCHELL et al., Appellees, v. CRAIN et al., Appellants. ^*

No. 5104.

Court of Appeals of Ohio, Lucas County.

Decided Dec. 1, 1958.

Syllabus by the Court

1. A final order from which an appeal may be taken as defined by Section 2505.02, Revised Code, is an order affecting a substantial right in an action which in effect determines the action and prevents a judgment, an order affecting a substantial right made in a special proceeding or upon a summary application in an action after judgment.

2. Although partition is a matter of equitable jurisdiction and among those classes of action appealable on law and fact (Section 2501.02, Revised Code) the action provided by Chapter 5307 of the Revised Code is a civil action and not a special proceeding under the provisions of Section 2505.02, Revised Code.

3. The terms 'judgments' and 'final orders' as employed in Section 6, Article IV of the Constitution are limited to judgments or orders which give final effect to the central purpose or some independent branch of the litigation, finality being the touchstone in the determination of that quality.

4. Ordinarily in partition actions the final orders from which appeals may be taken are limited to the order of partition and the order confirming the sale.

5. An appeal on questions of law and fact from a so-called interlocutory order (as distinguished from a final order) entered in a partition case involving an abuse of discretion incident to which no equitable questions were determined, on motion, will be dismissed on questions of law and fact and retained for review on questions of law.

6. After dismissing an appeal on questions of law and fact and retaining the same on questions of law, the Court of Appeals is limited in its review of the evidence to the bill of exceptions and may not consider the evidence taken by deposition in the Court of Appeals.

7. Upon a sale in partition by the sheriff wherein the record discloses that the proceedings are in all respects regular and according to law in the absence of any legal ground for withholding confirmation, the court commits a 'technical' abuse of discretion in ordering vacation of such sale.

George E. Ferstle and Jane Meyers Sutter, Toledo, for appellant.

Clifford F. Brown, Norwalk, and Edward J. Hagerty, Toledo, for appellees.

FESS, Judge.

This is an appeal on questions of law and fact from an order of the Common Pleas Court in an action for partition vacating and setting aside a sale of real estate at public auction to appellant and, after directing the return of any purchase money, ordering the sheriff to readvertise and resell the property. Appellees move to dismiss the appeal on the ground that the appeal is not taken from a final order and upon the further ground that the order from which the appeal on questions of law and fact is taken 'does not involve the class of action on which an appeal on questions of law and fact can be maintained as prescribed by' Section 2501.02, Revised Code.

A final order from which an appeal may be taken is defined by the Code as an order affecting a substantial right in an action which in effect determines the action and prevents a judgment, an order affecting a substantial right made in a special proceeding or upon a summary application in an action after judgment, etc. Section 2505.02, Revised Code. Although partition is a matter of equitable jurisdiction and among those classes of action appealable on questions of law and fact (Section 2501.02, Revised Code) the action provided by statute (Chapter 5307, Revised Code) is a civil action and not a special proceeding. Mack v. Bonner, 3 Ohio St. 366, 367; Stableton v. Ellison, 21 Ohio St. 527; Linton v. Laycock, 33 Ohio St. 128; McRoberts v. Lockwood, 49 Ohio St. 374, 34 N.E.2d 734; Cf. Wagner v. Armstrong, 93 Ohio St. 443, 113 N.E. 397; Russell v. Russell, 137 Ohio St. 153, 28 N.E.2d 551. It is said that a final order or judgment is one disposing of the whole case or some separate or distinct branch thereof. 2 Ohio Jurisprudence (2d), 600. It is said also that the 'final orders' included in the term 'judgments' as used in the Constitution, are limited in application to acts or decrees of the court which give final effect to the central purpose of some independent branch of the litigation, finality being the touchstone in the determination of that quality. Hoffman v. Knollman, 135 Ohio St. 170 20 N.E.2d 221 (order granting a new trial); State v. Smith, 135 Ohio St. 292, 20 N.E.2d 718 (order granting defendant's motion for inspection of confessions); Hymel v. Bing, 67 Ohio App. 432, 31 N.E.2d 112 (order overruling motion to dismiss will contest); Stautzenbach v. Fritz, 71 Ohio App. 251, 49 N.E.2d 180 (order staying proceedings for duration of war); Swank v. Wilson, 80 Ohio App. 58, 74 N.E.2d 773 (order setting aside report of commissioners in a partition case).

Notwithstanding the lack of finality of the order in the instant case setting aside the sale in partition and ordering a resale, there appears to be some contrariety of opinion in Ohio on the subject. Many years ago the Supreme Court held that no appeal would lie from the decision of the Probate Court setting aside or refusing to confirm a sale made by an assignee for the benefit of creditors. Aultman, Miller & Co. v. Assignees of J. F. Seiberling Co., 1877, 31 Ohio St. 201. In that case, upon the refusal of the Probate Court to confirm the sale, and appeal was taken to the Common Pleas Court, which confirmed the sale. On error, the district court affirmed the judgment, which in turn was reversed by the Supreme Court upon a proceeding in error. In its opinion, the court points out that the nature of appeals in Ohio differs from appeals in many states since the effect of an appeal in Ohio is to vacate the order, decision or decree appealed from, and to remove the entire cause to the reviewing court. Hence it had been uniformly held in Ohio that no appeals were allowable, except from such decisions as were, in their nature, final. The court concludes:

'The refusal to confirm the sale concludes no rights of property. True, it does settle that the inchoate agreement is not to be completed; but, until confirmed by the judge, the agreement is imperfect. Confirmation is essential to make it complete and binding.

'The refusal to confirm, or the setting aside a sale, unlike its confirmation, leaves the property undisposed of, to be again offered for sale, and giving all desiring to purchase an equal opportunity to do so.

'Without, therefore, saying that an appeal may not be taken in the case of a confirmation of sale, we are unanimous in the opinion that, in the case of a refusal to confirm, there is no appeal.' ¹

In Reeves v. Skenett, 1862, 13 Ohio St. 574, the court had held that no appeal would lie from an order of the Common Pleas Court confirming or refusing to confirm a sale under a foreclosure decree and that a petition in error furnished the only mode of review. But in Browne v. Wallace, 1899, 60 Ohio St. 177, 53 N.E. 957, after distinguishing the Reeves and Aultman cases, the Supreme Court held that an appeal would lie from the Probate to the Common Pleas Court from a judgment confirming a sale under the insolvency laws.

With regard to appeals in partition cases, prior to the adoption by the Code of Civil Procedure, it was held that an appeal would lie from an order entered in an action for partition brought in chancery, but that there was no appeal from a judgment of the Common Pleas Court under the then so-called statute for partition. Doane v. Fleming, 1832, Wright 168; Hoy v. Hites, 1842, 11 Ohio 254. But after the adoption of the Code it was held that the Act of March 23, 1852, provided for appeals in all final judgments in civil cases at law, decrees in chancery, etc., stating that since a petition for partition was neither a suit in chancery nor a commonlaw action, but a civil suit or proceeding prescribed by statute, an appeal would lie from an order dismissing the petition. Mack v. Bonner, 1854 3 Ohio St. 366. It was again held that no appeal would lie under the special statutory proceeding for partition (Barger v. Cochran, 1864, 15 Ohio St. 460), but that a civil action for partition where the case depended upon the determination of equitable questions was appealable. Linton v. Laycock, 1877, 33 Ohio St. 128. Prior to 1912, in McRoberts v. Lockwood, 1892, 49 Ohio St. 374, 34 N.E. 734, it was held that the final judgment from which an appeal might be taken was not an order made in confirming or setting aside the proceedings of the commissioners or of the sheriff in aparting or selling the premises, but was the order which found the parties to be entitled to partition, ascertained and declared the portion of each and ordered the share of each to be aparted to the several owners. But after the adoption of the 1912 amendment to the Constitution, the court held that the McRoberts case no longer controlled and that the confirmation of the report of the commissioners and order of sale was a final order affecting the appellant's substantial rights, because such order finally excluded the appellant from her right to have the real estate aparted to her, compelled her to allow her property to be offered for sale to the public, and required her to compete with the public in attempting to reacquire a portion of her own property. Johnston v. Deaton, 105 Ohio St. 285, 137 N.E. 10.

So much with regard to decisions of the Supreme Court. In McArthur Bros. v. Central Trust Co., 1900, 12 Ohio Cir.Dec. 149, 21 Ohio Cir.Ct.R. 654, it was held that the refusal to set aside a master's sale of the property of a railroad might be preserved in the record for review on error in proceedings to reverse the order of confirmation of the sale, but that the refusal to set aside a sale was not a final order which might itself be reviewed on error. In Ackerman v. Cornell, 1921,...