Sellman v. Schaaf

• Citation: 244 N.E.2d 494,17 Ohio App.2d 69
• Parties: , 46 O.O.2d 91 SELLMAN et al., Appellants, v. SCHAAF et al., Appellees.
• Decision Date: 29 January 1969
• Court: United States Court of Appeals (Ohio)

Page 69

17 Ohio App.2d 69

244 N.E.2d 494, 46 O.O.2d 91

SELLMAN et al., Appellants, v. SCHAAF et al., Appellees.

Court of Appeals of Ohio, Third District, Logan County.

Jan. 29, 1969.

Syllabus by the Court

1. The statutory grant of jurisdiction to the Courts of Appeals in Section 2501.02, Revised Code, does not provide for the appeal of part of a case but only in the appeal of completed cases, which may then be considered by such Courts of Appeals in one of two different manners-either (1) as an appeal on questions of law and fact if the primary and paramount relief sought is one of ten designated classes of action, or (2) as an appeal on questions of law only in all other cases.

2. Where causes of action contained in the pleadings are yet undetermined and undecided, an appeal on questions of law or on law and fact is premature for the reason that a completed case is not the basis for the appeal.

3. Where the plaintiff-appellant has in his petition pleaded alternative causes of action praying for alternative relief, and the order of the trial court disposes of one alternative but leaves the other for later determination such an order is not final for it neither determines the action nor prevents a judgment on the untried alternative cause of action.

Smith & Smith, J. Ewing Smith, Bellefontaine, and McCulloch, Felger, Fite & Gutmann, Piqua, for appellants.

Schlafman & Elliott, Fairborn, and James R. Goslee, Bellefontaine, for appellees.

COLE, Judge.

This case comes before the court upon a motion to dismiss an appeal taken on questions of law and fact.

The facts alleged in the pleadings and as set forth in the transcript of testimony indicate that in 1944 Harry E. Johnson and John P. Schooley dedicated a certain subdivision of part of Seminole Island in Indian Lake, Logan County, Ohio, known as Seminole Shores Subdivision No. 2. Some one hundred and sixteen lots were included in the subdivision, the plat being duly recorded. Among the lots were lots Nos. 85 and 86, both with shore line frontage, lot 85 being adjacent to and north of lot 86 with a common boundary between the two. The lots were surveyed and the lot corners designated by stakes or pins.

Subsequently, on August 26, 1950, lot 85 was transferred to Charles M. Grafelman and his wife, and on the same day lot 86 was transferred to Ralph D. Leatherman and his wife. Both lots at the time were bare land. Grafelman partially completed a house and constructed a boat dock, and about September 21, 1951, transferred lot 85 to the plaintiffs, Reuben Sellman et al., who completed the house. Title to lot 86 remained in the Leathermans until May 10, 1956, when they transferred title to the defendants, Charles L. Schaaf and his wife. Sometime in 1960 a dispute developed as to the location of the boat dock erected originally by the Grafelmans and as to the boundary line between the two lots.

On October 19, 1960, the Sellmans filed a petition against the Schaafs praying for a temporary and permanent injunction enjoining the Schaafs from interfering with their possession of lot 85.

To this the defendants, Schaafs, filed answer and a cross-petition setting forth four causes of action:

1. In ejectment for recovery of real estate.

2. For damages for wrongful use of real estate.

3. For prospective damage for continued use of the real estate.

4. To quiet title, and also for a mandatory injunction to require plaintiffs to remove the boat dock from their premises.

Thereafter plaintiffs filed an amended petition joining as defendants the Grafelmans, their predecessors in title, Mrs. Leatherman, a Mr. Cory owning lots 87 and 88 and the original dedicators John P. Schooley and Harry E. Johnson. They then prayed for a temporary and permanent injunction against the Schaafs from interfering with the plaintiffs' use of the boat dock, a mandatory injunction to remove a steel fence erected by defendants Schaafs, for a determination of the true boundary line of the premises, an injunction against Cory, Schooley or Johnson asserting title to the premises and, in the alternative, if the court found in favor of defendants Schaafs' claims as to the boundary, damages against Grafelman and Johnson. Subsequently Cory and Schooley were dismissed as defendants by the court. A supplemental answer and reply were filed and issues were joined, the temporary injunction having been allowed.

The judgment and order from which appeal was taken dissolved the temporary injunction and by implication denied plaintiffs' petition for permanent injunction, granted defendants Schaafs possession of 'all parts of plaintiffs' boat dock as are situated on the Schaaf land as shown by the survey of William Lewis' and quieted title to this area in the Schaafs. Damage claims by Schaafs against Sellman were deferred as were damage claims of Sellman against Johnson and Grafelman. No judgment or finding was made against Mrs. Grafelman or the Leathermans, and a finding was made that 'since the defendant Johnson was brought into the case in the 12th year after the signing of the deed that Revised Code 2305.06, controls and it provides such action should be brought within 15 years.'

There was no determination made as to the Schaafs' prayer for a mandatory injunction to require plaintiffs to remove the dock from the Schaafs' land.

Notice of appeal on questions of law and fact was filed by the plaintiff, and the defendants moved to dismiss on questions of law and fact.

The first problem presented by this motion is not whether this appeal is properly on questions of law and fact, but whether it is timely taken in any event. We do not here consider the question as to the effect of the constitutional amendment of May 5, 1968, on the jurisdiction of Courts of Appeals in law and fact appeals as that question in the view of the case here taken does not arise. It is clear from the record and transcript that the case in the Common Pleas Court is not concluded. All damage issues remain and perhaps the equitable issue as to a mandatory injunction requested by the defendants Schaafs. Under these circumstances we must determine whether at this time the case is properly appealable on questions of law and fact.

The statutory grant of jurisdiction to Courts of Appeals is set forth in Section 2501.02, Revised Code, which in part reads as follows:

'* * * in addition to the original jurisdiction conferred by section 6 of Article IV, Ohio Constitution, the court shall have jurisdiction:

'* * *

'Upon an appeal on questions of law and fact the court of appeals, in cases arising in courts of record inferior to the court of appeals within the district, shall weigh the evidence and render such judgment or decree as the trial court could and should have rendered upon the original trial of the case, in the following classes of actions, seeking as a primary and paramount relief:

'* * *

'In all cases not falling within the classes designated above the court of appeals shall have jurisdiction to proceed as in an appeal on questions of law only.'

This court has held in the case of Mories v. Hendy, 1 Ohio App.2d 349, 204 N.E.2d 699, that these paragraphs granting jurisdiction do not authorize partial appeals but only appeals of entire cases. As therein set forth in the opinion, at page 354, 204 N.E.2d at page 702:

'It appears obvious that the Legislature contemplated and intended that there should normally be only one appeal of a 'case' to the Court of Appeals, that that appeal should be of the 'case' in its entirety, including all causes of action therein, and that the Court of Appeals should proceed to consider the entire case on appeal in only one of two different manners, i. e., either (1) as an appeal on questions of law and fact if the primary and paramount relief sought is that of one of the ten designated classes of actions, or (2) as an appeal on questions of law only in all other cases.'

In the present situation there are numerous causes of action, some being equitable and within the enumerated classes appealable on questions of law and fact. Others are actions of law. Which is the primary and paramount relief requested is immaterial at this stage for the entire case has not been disposed of as yet. There still remain untried causes of action to resolve before the 'case' is completed. At that point, on appeal the question would then arise: Is the primary and paramount relief such as to fall within the enumerated classes? As this point we have only a part of a 'case' and the appeal is premature.

As in Mories v. Hendy, supra, a second approach to the same problem is possible, re-enforcing the conclusion there and here reached. This is the approach which raises the question: Is there in fact in this appeal a final order or judgment from which an appeal can be properly taken?

In 2 Ohio Jurisprudence 2d 598, Section 32, it is said: 'A preliminary or interlocutory order is not reviewable on appeal on questions of law. General policy is opposed to separate review upon interlocutory orders. The prompt and orderly disposal of litigation is an object much to be desired, and the entertainment of appeals from various orders made by the trial court during the progress of the main action is not in pursuance of such object.'

See In re Will of Thomas, 84 Ohio App. 30, 84 N.E.2d 294.

Obviously this order was a type of half-way mark in the case. Had this decision been the other way-in favor of plaintiff-all issues would have terminated, for his injunction would have become permanent, his alternative request for relief moot, and the relief asked by defendant denied. However, since the issue of the boundary dispute has been determined in favor of the defendants, all damage claims are still alive and so is defendants' prayer for a mandatory injunction. Is the order then interlocutory or of sufficient scope as to constitute a final order?

In the very early case of Teaff v. Hewitt, 1 Ohio St. 511, the court says at page 520:...