In re Estate of Kyle

OPINION By THE COURT: Submitted on motion of appellee to dismiss said appeal on the ground that the order appealed from is not a final order. An application was filed in the Probate Court of Miami County against the appellant alleging that she. as life tenant of certain securities, had converted and used said securities as her own in violation of the terms of the will under which she held said property. Said application sought to have the assets restored to the estate and a trustee appointed to take charge of the assets of said estate. To this application appellant filed a general demurrer, which was overruled. The entry overruling the demurrer does not render final judgment, neither does it grant leave to appellant to plead. Voi. 2 O. Jur. 2d, page 618, Sec. 47, the text is as follows: “There is no final order which can be made the basis of an appeal on questions of law, where a cause has proceeded no further than the mere overruling or sustaining of a demurrer to a pleading of one side or the other, since such an order, without more, leaves the action still pending in the lower court. This rule has been applied to an order overruling a demurrer to a petition where the defendant answers or has leave to answer.” (Numerous cases cited.) The most recent pronouncement of the Supreme Court is found in Collins v. Yellow Cab Co., 157 Oh St 311, where the Court, on page 314, said: “It has long been the law of this state that the overruling or sustaining of a demurrer to a pleading, which is not followed by either judgment or the dismissal of the case, is not a ‘final order’ which may be appealed on questions of law. See Holbrook, Admr., v. Connelly, 6 Oh St, 199; Betz v. Industrial Commission, 139 Oh St, 624, 41 N. E. (2d), 701.” [546] See, also, three cases decided by this District Court of Appeals: Kelley v. Kelley, 74 Oh Ap 225; Fornoff v. Ehlert, 53 Abs 96; Davis v. Moor. 54 Abs 383. See, also, Bell v. Bell, 88 Oh Ap 427, wherein the case of Czech Catholic Union v. East End Bldg, and Loan Assn., 140 Oh St 465, was distinguished on the facts. Motion to dismiss sustained. WISEMAN, PJ, MILLER and HORNBECK, JJ, concur.