Wagner v. B. & O. Railroad

ON APPLICATION FOR REHEARING

BY THE COURT:

The above entitled cause is now being determined on plaintiff-appellant’s application for rehearing on our decision rendered June 6, 1944.

In our opinion we determined that the entry filed December 22, 1943 was the final order and that since the notice of appeal was not filed within twenty days following such entry, the motion to dismiss must be sustained. ' In the opinion we made some comment that counsel for appellant had made no reference to his claim that judgment entry did not conform to the decision. In making this observation we also stated that it was not important. Counsel in their memoranda accompanying the motion for rehearing ■ now state the particulars in which the entry did not conform to the decision as follows: “The opinion did not contain the phrase ‘and this case is dismissed at the costs of the plaintiff’.”

This is not at all unusual where the court ascertains after sustaining a demurrer or motion that counsel does not desire to plead further. Under such a situation the entry logically follows that the case is dismissed and costs adjudged against the petitioner. In our original opinion it was pointed out that counsel for appellant has signed the entry and therefore was aware of. the order of the court.

*360We adhere to our former ruling that this was the final order.

When the trial court sustained the demurrer and dismissed the petition the case was at an end. To permit a litigant to file motion to set aside such final order and thus extend the time for filing an appeal would have the result of holding the case indefinitely since after every ruling counsel might file a further motion to set aside, etc.

The application for rehearing will be denied.

BARNES, P. J., HORNBECK and GEIGER, JJ. concur.