Petrus v. Petrus

• Decision Date: 03 June 1964
• Docket Number: Nos. 38449-38451,s. 38449-38451
• Citation: Petrus v. Petrus, 176 Ohio St. 305, 199 N.E.2d 579 (Ohio 1964)
• Parties: , 27 O.O.2d 233 PETRUS, Appellee, v. PETRUS et al.; Ridge Industrial Realty, Inc., Appellant, et al. PETRUS, Appellee, v. PETRUS et al.; Swanson, Appellant. PETRUS, Appellee, v. PETRUS; The Petrus Machinery, Inc., Appellant, et al.
• Court: Ohio Supreme Court

Page 305

176 Ohio St. 305

199 N.E.2d 579, 27 O.O.2d 233

PETRUS, Appellee, v.PETRUS et al.; Ridge Industrial Realty, Inc., Appellant, et al.

PETRUS, Appellee, v.PETRUS et al.; Swanson, Appellant.

PETRUS, Appellee, v.PETRUS; The Petrus Machinery, Inc., Appellant, et al.

Nos. 38449-38451.

Supreme Court of Ohio.

June 3, 1964.

Syllabus by the Court

An order in an action for alimony overruling defendant's motion to be dismissed as a partydefendant and to dismiss a temporary restraining order issued against such defendant to maintain the status quo is not a final appealable order.(Burke v. Railway Co., 45 Ohio St. 631, 17 N.E. 557, overruled.)

On October 19, 1960, plaintiff, appellee herein, filed a petition in the Common Pleas Court against Alex E. Petrus, a defendant, asking for alimony and for custody of, and a support award for, minor children of the parties.She also made partiesdefendantThe Petrus Machinery, Inc., a defendant- appellant, and The Cleveland Trust Company.In the petition she asks for a temporary order restraining the transfer, encumbering, etc., of property, and the court made the following order:

'Temporary restraining order allowed until further order of the court.No bond.'

Service of summons was made and the summons was stamped, showing that a restraining order was allowed.To this petition the court sustained in part a motion to make definite and certain, but no leave to plead was given.Without leave of court, on March 30, 1961, plaintiff filed an amended petition naming the same partiesdefendant, and on the same day there was placed on the journal an entry as follows:

'Temporary restraining order allowed until further order of the court.Bond $100.'

A praecipe was also filed, and service was again made with return day set six weeks in the future.

On May 22, 1961, defendantAlex E. Petrus filed an answer and cross-petition asking for a divorce, service being made on plaintiff.

On October 18, 1962, plaintiff filed a supplemental petition naming the same three defendants as in the other petitions and in addition naming as new defendantsOscar E. Swanson and Ridge Industrial Realty, Inc., and on the same day there was placed on the journal an entry as follows:

'Temporary restraining order allowed until further order of the court.No bond.'

The defendant Swanson, being a resident of Lorain County, was served by the sheriff there.The summons served upon the new defendants was endorsed, 'Equitable relief in an action for alimony, etc.,' with a statement that a restraining order was allowed.

Each of the defendantsThe Petrus Machinery, Inc., Oscar E. Swanson and Ridge Industrial Realty, Inc., filed a motion to be dismissed as a partydefendant and requesting that the restraining order issued on October 18, 1962, be dissolved.The court, on June 21, 1963, overruled each of the motions, and each of such three defendants filed an appeal to the Court of Appeals.Plaintiff then filed a motion in each of the appeals asking the court to dismiss the appeals, on the ground that there was no final order from which an appeal could be taken.Such motions were sustained by the Court of Appeals, and that court, finding its judgment to be in conflict with the judgments in the cases of Black v. Poling, Ohio App., 69 N.E.2d 372, 45 Ohio Law Abst. 298 and Elder v. Elder, Ohio App., 99 N.E.2d 677, both decided by the Court of Appeals of the Second Appellate District, certified the record to this court for review and final determination.

McCafferty, Perelman & Holtz, Cleveland, for appellee.

Leyshon & Leyshon, Cambridge and Kitchen, Messner & Leyshon, Cleveland, for appellants.

YOUNGER, Judge.

This court, in a per curiam opinion in the case of Burke v. Railway Co., 45 Ohio St. 631, 17 N.E. 557, held as follows:

'An order of the Court of Common Pleas overruling a motion to dissolve an injunction is an order affecting a substantial right, made in a special proceeding, which may be reviewed on error by the circuit court.'

There is no statement of facts in the report of that case, but from the style of the case it is safe to assume that it was not a divorce or alimony action, and there is nothing in the opinion to make definite whether the injunction under consideration was temporary or permanent in nature.However, we learn from a related case (Columbus, Hocking Valley & Toledo Ry. Co. v. Burke, 54 Ohio St. 98, 43 N.E. 282, 32 L.R.A. 329, in which an attempt was made to collect upon the bond given) that it was a temporary injunction granted at the start of the case.

That case is criticized in Hersch v. Home Savings & Loan Co., 59 Ohio App. 145, 17 N.E.2d 377, as follows:

'The decision in the case of Burke v. Ry. Co., supra, is an excellent example of the futility of rendering decisions wherein merely an abstract statement of the law is set forth, without giving the facts to which the stated law is applicable. * * *'

In the case of Black v. Poling, supra, the court held:

'The overruling of a motion of defendant to dismiss the temporary injunction previously granted to plaintiff(on the authority of Burke v. RailwayCo., 45 O. St. 631 ), is an order affecting a substantial right made in a special proceeding and is appealable.'

The court stated further:

'But for the pronouncement of the Supreme Court in Burke v. Railway Co., we would seriously doubt if the overruling of a motion to dissolve a temporary injunction is an order affecting a substantial right made in a special proceeding.But for the controlling precedent, we would be disposed to hold in this case that the temporary injunction granted by the trial judge merely operated as an...