Priester v. State Foundry Co., 36700

• Decision Date: 08 March 1961
• Docket Number: No. 36700,36700
• Citation: 172 Ohio St. 28,173 N.E.2d 136
• Parties: , 15 O.O.2d 57 PRIESTER, Appellee, v. STATE FOUNDRY CO., Appellant.
• Court: Ohio Supreme Court

Page 28

172 Ohio St. 28

173 N.E.2d 136, 15 O.O.2d 57

PRIESTER, Appellee, v. STATE FOUNDRY CO., Appellant.

No. 36700.

Supreme Court of Ohio.

March 8, 1961.

Syllabus by the Court

1. A summary judgment, which represents a 'final determination of the rights of the parties in action' and hence comes within the definition of a judgment set forth in Section 2323.01, Revised Code, can be rendered under Section 2311.041, Revised Code, only 'if the pleadings, depositions, answers to interrogatories, admissions of the genuineness of papers and documents, and affidavits * * * show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law * * * upon the whole case or for all the relief asked.'

2. There can be no appeal from an order rendered pursuant to a motion for summary judgment which order does not purport to be a judgment upon the whole case or for all the relief asked, even though such order purports to be a judgment upon part of the case and for part of the relief asked.

Plaintiff instituted this action against defendant by the filing of a petition alleging an agreement evidenced by a written memorandum, under which defendant was to employ plaintiff as general manager of its foundry division at $12,000 per year plus 10 per cent of the net profits of the foundry division to be figured before income taxes; that by its terms either party could terminate said agreement on 90 days' notice; and that plaintiff entered upon performance of his duties and operated such foundry as general manager from September 1, 1959, to November 20, 1959, when defendant terminated plaintiff's employment without notice. Plaintiff seeks recovery of $3,000, representing payments at the rate of $12,000 per year for 90 days after November 20, 1959, less $230.76 paid him for part of that period, and plaintiff also seeks recovery of 10 per cent of the profits before taxes of the foundry division from September 1, 1959, to a date 90 days after November 20, 1959.

The first defense of defendant's answer seeks to avoid the agreement of employment on the ground that it was induced by false statements and representations by plaintiff. The second defense alleges in effect that plaintiff did not perform the terms of the employment agreement and that therefore the 90-day notice was not required by the terms of that agreement.

Plaintiff filed a motion 'for summary judgment * * * for * * * $8,527.19 with interest * * * for the reason that upon the pleadings and the affidavits and exhibits filed herewith, reasonable minds can come to no other conclusion except that the plaintiff is entitled to such judgment against the defendant.'

Thereafter, on May 25, 1960, the trial court made an order providing in part:

'* * * the court finds that the plaintiff is entitled to summary judgment for the period of 90 days from the termination of his employment on the 20th of November 1959, based on his annual salary of * * * $12,000 * * *, less the period of 7 days * * * for which he has been compensated. It is, therefore, considered, adjudged and decreed * * * that the plaintiff recover judgment against the defendant for * * * $2,769.24. The court reserves for trial the balance of plaintiff's claim, for 10 per cent * * * of the profits from the date of his employment and as to such claim the matter is continued * * *.'

The defendant filed notice of appeal to the Court of Appeals from that order, describing it as 'a judgment rendered * * * on' May 25, 1960.

Plaintiff filed a motion in the Court of Appeals to dismiss the appeal 'for the reason that such order of May 25, 1960, was an interlocutory order upon motion for summary judgment and not a final order * * *, there being reserved for trial question as to the balance of plaintiff's claim.'

The cause is now before this court on appeal from the judgment of the Court of Appeals granting that motion and pursuant to allowance of defendant's motion to certify the record.

Brouse, McDowell, May, Bierce & Wortman and Frank H. Harvey, Jr., Akron, for appellant.

Amer, Cunningham & Schnur, Akron, for appellee.

TAFT, Judge.

The substance and most of the words of Section 2311.041, Revised Code, ^* which became effective in 1959, have been taken from Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A. Wills, A Proposed Summary Judgment Statute for Ohio, 19 Ohio State Law Journal, 1.

As indicated by the words of the statute, a summary judgment which would represent a 'final determination of the rights of the parties in action' and hence come within the definition of a judgment set forth in Section 2323.01, Revised Code, is to be rendered only 'if the pleadings, depositions, answers to interrogatories, admissions of the genuineness of papers or documents, and affidavits * * * show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of...