Monte Young, Inc. v. Whetzel

OPINION By THE COURT: Submitted on motion of defendant-appellee to dismiss the appeal on two grounds: First, that the order of the Common Pleas Court overruling the motion of the plaintiff-appellant for judgment on the pleadings, which is the order from which the appeal is taken, is not a final order; second, that the assignments of error and brief of plaintiff-appellant were not filed within fifty days after filing the notice of appeal. The record shows that the appeal is taken from the order of the Common Pleas Court overruling plaintiff-appellant’s motion for judgment on the pleadings. Plaintiff-appellant did not stand on this order and permit judgment to be entered against it. An order overruling a motion for judgment on the pleadings, with nothing more, is not a final order constituting a predicate for an appeal. Meyer v. Daniel, 147 Oh St 27, 67 N. E. 789. The record shows that the plaintiff-appellant did not file its assignments of error and brief within fifty days after the filing of the notice of appeal as required by Rule VII of this Court. This Court has consistently ruled that in appeals upon questions of law the appeal will be dismissed for failure to file assignments of error and briefs within the time prescribed by Rule VII. Peck v. County Commissioners, 28 Abs 702; Seifer v. Industrial Commission, 29 Abs 52; Brown, Gdn. v. Brown, 35 Abs 527, 42 N. E. (2d) 509. See also Anderson v. Industrial Commission, 135 Oh St 77, 19 N. E. (2d) 509. The motion to dismiss the appeal will be sustained on both grounds. MILLER, PJ, HORNBECK and WISEMAN, JJ, concur.