Schindler v. Standard Oil Co.
| Citation | 133 N.E.2d 336,165 Ohio St. 76,59 O.O. 82,56 A.L.R.2d 1233 |
| Decision Date | 14 March 1956 |
| Docket Number | No. 34532,34532 |
| Parties | , 56 A.L.R.2d 1233, 59 O.O. 82 SCHINDLER et al., Appellants, v. The STANDARD OIL CO. et al., Appellees. |
| Court | United States State Supreme Court of Ohio |
Syllabus by the Court.
1. Generally, an order overruling a general demurrer is not a final appealable order.
2. Where, upon the sustaining of a general demurrer to a petition, the judgment sought is not prevented because fo the right to amend the petition, there is no final appealable order, but, where the order sustaining the demurrer absolutely prevents the judgment, and the right to amend would be of no avail, there is a final appealable order.
3. Where a demurrer to a petition is sustained on the grounds of misjoinder of parties defendant and misjoinder of causes of action, in a situation where there can be no amendment of such petition within the facts to retain a claimed right to a joint and several judgment against such defendants, the sustaining of such demurrer affects a substantial right, in that it effects a termination thereof, and constitutes a final appealable order.
This is an action for damages to real property brought by Joseph Schindler and Thelma A. Schindler, husband and wife, who own the property described in the amended petition, located on the west side of the circular park in the center of Litchfield, Medina County. The amended petition filed in the Common Pleas Court of Medina County on April 14, 1952, alleges that named various separate groups of defendants, more than a dozen in all, each engaged in a joint adventure or joint enterprise during various stated periods of time in the past and up until the filing of the amended petition, were engaged in operating five separate gasoline stations located at different points around the center in Litchfield; that the individual members of these separate groups operated a single gasoline station during a certain period of time within the total period during which the wrongs complained of occurred; that each of these separate groups was at fault in that during the period of time it was operating its gasoline station it failed to confine the gasoline stored therein to the premises and, due to negligence in the inspection and maintenance of its tanks and equipment, permitted gasoline to escape; and that said gasoline so escaping from all said stations during various named periods of time from 1925 to 1948 percolated through the earth and on or about October 25, 1948, percolated into the land of the plaintiffs, contaminating the water wells and rendering the water therein unfit for drinking or domestic use, all to the damage of the plaintiffs in the sum of $32,000.
Various and numerous of the defendants demurred to the amended petition for misjoinder of parties defendant, for misjoinder of causes of action and for misjoinder of separate causes of action against several defendants. The Common Pleas Court sustained the demurrers but entered no dismissal of the action, through an entry the pertinent parts of which are as follows:
'Upon due consideration of each and all of said demurrers, the court finds that all of said demurrers should be sustained upon the ground of misjoinder of parties defendant and upon the ground that separate causes of action against several defendants are improperly joined, said misjoinder and improper joinder consisting solely of: (1) the joinder of separate groups of defendants alleged, respectively, each to have been jointly operating and controlling a gasoline station and property different from the gasoline station and property operated and controlled by each of the other groups, and (2) of the joinder of separate groups of defendants alleged during continuous successive periods of time to have been, jointly as to each group, operating and controlling a single gasoline station and property; and it is hereby ordered and adjudged that said demurrers be and the same are accordingly hereby sustained as against each joinder.
'Said demurrers and each of them are hereby overruled as to all other questions raised by them and each of them.
'Plaintiffs and each of them and each and all of said defendants hereby except to each and all of the foregoing rulings.
'Amendments by plaintiffs in conformity with this order will be permitted pursuant to further order setting a time or times for same.'
The plaintiffs appealed on questions of law from that order to the Court of Appeals. The Court of Appeals overruled a motion of the defendants to dismiss the appeal, for the reason that the order appealed from is not a final appealable order, and, finding that its judgment is in conflict with judgments on the same subject by another Court of Appeals in the cases of Hendrickson v. Galbreath, 27 Ohio Law Abst. 422 and Johnson v. Campbell, Ohio App., 104 N.E.2d 598, it certified the record of the instant case to this court for review and final determination. This court dismissed the appeal as of right, for the reason no debatable constitutional question was involved, found that there was no final order and no valid certification of the record by the judges of the Court of Appeals and remanded the cause to the Court of Appeals for Medina County for hearing on the merits. See 162 Ohio St. 96, 120 N.E.2d 590.
Upon remand to the Court of Appeals, that court on motion of the appellees dismissed the appeal for the reason that the order of the trial court was not a final order. The plaintiffs here then perfected a second appeal to this court on questions of law, their motion to certify having been allowed.
J. B. Palmquist, Medina, and Ralph Burroughs, Akron, for appellants.
Weber & Williams, Medina, McAfee, Grossman, Taplin, Hanning, Newcomer & Hazlett, H. Vincent E. Mitchell, Cleveland, Wise, Roetzel, Maxon, Kelly & Andress, Akron, R. E. Snedden and Robert L. Johnson, Medina (Harold L. Williams, Medina, of counsel), for appellees.
The record in this case calls for a determination by this court of the correctness of the judgment of the Court of Appeals in dismissing the appeal before it, on the ground that the order of the trial court in sustaining the demurrers to the amended petition is not a final order.
The defendants contend that the...
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