Yendes v. Shaw

This cause is submitted on motion to dismiss the appeal on the ground that the order appealed from is not a final order.

The defendant, appellant herein, filed three separate defenses and a cross-petition. The trial court sustained a demurrer to the second and third defenses and the cross-petition. The defendant not desiring to plead further, the second and third defenses and the cross-petition were dismissed.

An order sustaining a demurrer without dismissing the action is not a final order, as the court may grant leave to amend.National Guarantee Finance Co. v. Russell, 25 Ohio Law Abs., 483. However, an order sustaining a demurrer to the second and third defenses and cross-petition and dismissing the defenses and cross-petition is a final order under the provisions of Section 12223-2, General Code, from which an appeal may be taken. Latham v. Ransome Concrete Machinery Co., 13 Ohio Law Abs., 63; Morehead v. Central Trust Co., Exr., 54 Ohio App. 9, 5 N.E.2d 932.

The motion to dismiss the appeal is overruled.

Motion overruled.

MILLER and HORNBECK, JJ., concur. *Page 233