State v. Roberts
| Decision Date | 26 October 1957 |
| Citation | 106 Ohio App. 30,153 N.E.2d 203 |
| Parties | , 6 O.O.2d 284 The STATE of Ohio, Appellee, v. ROBERTS, Appellant. The STATE of Ohio, Appellee, v. ROBERTS et al., Appellants. |
| Court | Ohio Court of Appeals |
Syllabus by the Court.
1. Section 2505.02, Revised Code, defining a final order, is applicable to appeals in criminal cases as well as in civil cases.
2. The overruling of a plea in abatement is not a final order from which an appeal may be prosecuted.
3. The overruling of a motion to dismiss is not a final order within the meaning of Section 2505.02, Revised Code, and an appeal may not be prosecuted therefrom.
Stanley N. Husted, Pros. Atty., Springfield, for appellee.
Appeals have been taken on questions of law from a judgment of the Common Pleas Court of Clark County. The two appeals are in companion cases, and one opinion will suffice.
The defendants were indicted for a violation of Section 2907.21, Revised Code (larceny by trick), and, to the indictments, filed similar pleas in abatement. The court, for the purpose of disposing of the pleas, treated the matter as if demurrers had been filed. The court overruled the pleas. In the action against Tressie Roberts and John T. Roberts a motion to dismiss was filed, which was grounded on the claimed application of the 'three-term' rule in Section 2945.72, Revised Code. The motion to dismiss was overruled. From the orders overruling the pleas in abatement and overruling the motion to dismiss, these appeals were taken.
The overruling of a plea in abatement is not a final order from which an appeal may be prosecuted. Bogard v. State, 9 Ohio Law Abst. 436; Whitlock v. State, 21 Ohio Law Abst. 393 (); State v. James, 33 Ohio Law Abst. 256 (); 2 Ohio Jurisprudence (2d), 624, Section 50.
Section 2953.02, Revised Code, which provides for a review of 'judgment or final order' in a criminal case, and Section 2953.04, Revised Code, which prescribes the procedure to be followed in a review of a judgment or order in a criminal case, contemplate such final orders only as are defined in Section 2505.02, Revised Code. State v. Feeser, 27 Ohio Law Abst. 306; State v. Miller, 96 Ohio App. 216, 121 N.E.2d 660 (appeal dismissed by Supreme Court, 161 Ohio St. 467, 119 N.E.2d 618).
Section 2505.02, Revised Code (Section 12223-2, General Code), in part provides:
'An order affecting a substantial right in an action which in effect determines the action and prevents a judgment * * * is a final order which may be reviewed, affirmed, modified, or reversed, with or without retrial.'
In determining whether the orders appealed from are appealable orders, two criteria are involved: (1) The order must affect a substantial right, and (2) it must determine the action and prevent a judgment in favor of the party seeking review. A 'substantial right' is a 'legal right' within the meaning of this section. The rulings of the trial court on the pleas in abatement did not determine the action or prevent a judgment.
The same principle of law is applicable to the appeal in No. 546 with respect to the right of appeal from an order...
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Brown v. Justice's Court of Carson Tp., Ormsby County
...60 Cal.2d 139, 32 Cal.Rptr. 44, 383 P.2d 452 (1963); People v. Aguilar, 174 Cal.App.2d 662, 344 P.2d 880 (1959); State v. Roberts, 106 Ohio App. 30, 153 N.E.2d 203 (1957); People v. Goldman, 13 A.D.2d 552, 213 N.Y.S.2d 573 (N.Y.1961); United States v. Golden, 239 F.2d 877 (2nd Cir. 1956); U......
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State v. Smith, 2006 Ohio 5637 (Ohio App. 9/25/2006)
...Constitution; R.C. 2505.02. R.C. 2505.02 defines "final order" as it applies to both criminal and civil cases. See, e.g., State v. Roberts (1957), 106 Ohio App. 30. A final order is defined, inter alia, as an order that "affects a substantial right in an action that in effect determines the......
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State v. Steve W. Knight, 81-LW-3919
... ... Putnam ... (1961), 172 Ohio St. 456; Section 3(B)(2), Article IV of the ... Ohio Constitution. An appeal in a criminal case must also be ... based upon a judgment or a final order that amounts to a ... disposition of the cause. See R.C. 2953.02; State v ... Roberts (1957), 106 Ohio App. 30; State v ... Lile (1974), 42 Ohio App. 2d 89; State v ... Chamberlain (1964), 177 Ohio St. 104 ... In his ... third and fourth assignments of error, appellant contends ... that the trial court erred in granting the state's motion ... ...