Cody v. Miller

OPINION By THE COURT: Submitted on motion of plaintiffs-appellees to dismiss the appeal on the ground that the order appealed from is not a final order. The appeal is from an order vacating a judgment entered on a directed verdict in favor of the defendant and granting a new trial. This action was commenced on June 25, 1947. The Supreme Court of Ohio has just recently held, in Klever v. Express, Inc., 154 Oh St 491, that: “An order by a Court of Common Pleas granting a motion for a new trial in an action commenced prior to the effective date of the amendment to Section 6, Article IV of the Constitution of Ohio, in 1945 and prior to the amendment in 1947 of §12223-2 GC (122 Ohio Laws, 754), does not constitute a judgment or final order reviewable by the Court of Appeals, unless it clearly appears that the court in making such order abused its discretion. (Hoffman v. Knollman, 135 Oh St, 170, approved and followed.) “The term, ‘abuse of discretion,’ as it relates to an order [587] granting a motion for a new trial, connotes more than an error of law or of judgment; it implies an unreasonable, arbitrary'or unconscionable attitude on the part of the court in granting such motion. (Paragraph two of the syllabus in the case of Steiner v. Custer, 137 Oh St, 448, approved and followed.) ” In the instant case there is no claim made by counsel for the appellant in his assignments of error and brief that the trial court abused its discretion in sustaining the motion for new trial. The claim is made that the trial court committed an error of law. In the Klever case the action was commenced in 1942 prior to the amendment of Section 6, Article IV of the Constitution of Ohio, effective January 1, 1945 and prior to the amendment of §12223-2 GC, effective 'September 30, 1947. In the instant case the action was commenced on June 25, 1947, after the effective date of the amendment to Section 6, Article IV, of the Constitution, but prior to the amendment of §12223-2 GC, However, the court in the Klever case held that the amendment of Section 6, Article IV of the Constitution did not operate to validate and revitalize §12223-2 GC, as it then existed for the reason that the court had held in the case of Hoffman v. Knollman that the provision in that section, making an order granting a motion for new trial a final order, was unconstitutional. Inasmuch as the principle of law laid down in Hoffman v. Knollman applied to actions instituted prior to the effective date of the last amendment to §12223-2 GC, the order of the Common Pleas Court in the instant case granting the motion for new trial was not a final order from which an appeal could be taken to this Court unless it clearly appeared that the trial court abused its discretion. Motion to dismiss the appeal will be sustained and cause remanded. HORNBECK, PJ, WISEMAN and MILLER, JJ, concur.