32 Ohio St. 2d 81 | Ohio | 1972
The issue to be determined is whether the overruling of motions to quash subpoenas duces tecum awarded by court order under R. C. 1707.24 upon application ol the Division of Securities is a final appealab'e order.
R. C. 1707.24 provides:
“In case any person fails to file any statement or report, to obey any subpoena, to give testimony, to answer questions, or to produce any books, records, or papers as required by the Division of Securities under Sections 1707..-01 to 1707.45, inclusive, of the Revised Code, the Court of Common Pleas of any county in the state, upon application made to it by the division and upon proof made to it by the division of such failure, may make an order awarding process of subpoena or subpoena duces tecum for such person to appear and testify before the division, and may order any person to give testimony and answer questions, and to produce books, records, or papers, as required by the division. * * *”
R. C. 2505.02 defines “final order” as follows:
“An order affecting a substantial right in an action which in effect determines the action and prevents a judgment, an order affecting a substantial right made in a special proceeding or upon a summary application in an action after judgment, or an order vacating or setting aside a judgment and ordering a new trial is a final order which may be reviewed, affirmed, modified, or reversed, with or without retrial.”
Appellants argue that the trial court’s order overruling the motions to quash affects a “substantial right of the appellants” and is a final order because a court order awarding process of a subpoena duces tecum under R. C. 1707.24, being ancillary to an administrative proceeding, is final as it completes the court’s action in the matter.
Appellants do not specify in what manner their substantial rights have been affected by the awarding of process of the subpoenas. It is to be noted, however, that R. C. 1707.23 provides for the discovery of corporate records, and that in the present posture of the administrative pro
In connection with the argument that the order of the trial court is appealable because it completes the court’s action, appellants refer to Cobbledick v. United States (1940), 309 U. S. 323. In that case, the Supreme Court of the United States held an order of a district court denying a motion to quash a subpoena duces tecum requiring a witness to appear before a grand jury not to be a final decision and affirmed the judgment of the Circuit Court of Appeals dismissing the appeal.
In the course of the opinion in Cobbledick, Justice Frankfurter, as pointed out by appellants here, stated, at pages 329, 330:
“One class of cases dealing with the duty of witnesses to testify presents differentiating circumstances. These cases have arisen under Section 12 of the Interstate Commerce Act, whereby a proceeding may be brought in the district court to compel testimony from persons who have refused to make disclosures before the Interstate Commerce Commission. In these cases the orders of the district court directing the witness to answer have been held final and reviewable. Interstate Commerce Comm’n v. Brimson, 154 U. S. 447; Harriman v. Interstate Commerce Comm’n, 211 U. S. 407; Ellis v. Interstate Commerce Comm’n, 237 U. S. 434. Such cases were duly considered in the Alexander case, and deemed to rest ‘on statutory provisions which do not apply to the proceedings at bar, and, while there may be resemblances to the latter, there are also differences.’ 201 U. S. at 121.. The differences were thought controlling. Appeal from an order under Section 12 was again here in the Ellis case, supra, fully argued in the briefs, and again differentiated from a situation like that in the Alexander case. ‘No doubt’ was felt that an appeal lay from the district court’s direction to testify. ‘It is the end of a proceeding begun against the witness’-—was the pithy expression for this type of case.
In contrast to the foregoing, the Supreme Court in United States v. Morton Salt Co. (1950), 338 U. S. 632, 642, referring to the investigatory power of an administrative agency, stated:
“* * * It is * * * analogous to the grand jury, which does not depend on a case or controversy for power to get evidence but can investigate merely on suspicion, that the law is being violated, or even just because it wants assurance that it is not. ’ ’
It is apparent in any event that the subpoenas duces tecum were sought by appellee here for purposes of discovery. In Klein v. Bendix-Westinghouse Co. (1968), 13 Ohio St. 2d 85, 234 N. E. 2d 587, it was held that a discovery order of a trial court is not subject to immediate appellate review.
The underlying rationale for making only final orders appealable was well expressed by Justice Frankfurter in Cobbledick, supra (309 U. S. 323, 325), wherein he stated that purpose is to forbid “* * * piecemeal disposition on
We are persuaded by the reasoning of United States v. Morton Salt Co., supra (338 U. S. 632), that the investigatory power at issue here is analogous to that of a grand jury. We conclude, therefore, that the trial court’s order is not appealable, even though the trial court’s order completes the matter in that court for the time being; further proceedings may or may not result from the investigation by appellee. In the event the Division of Securities takes further action against appellants, they can adequately protect their rights at that time, and, if necessary, appeal such action, including therein the question sought to be appealed in the Court of Appeals, namely, whether “The Common Pleas Court erred in determining that the affidavit filed by plaintiff-appellee contained sufficient allegations to justify the exercise of the investigative powers of the Ohio Division of Securities.”
For the reasons expressed above, we hold that the overruling of motions to quash subpoenas duces tecum awarded by court order under R. C. 1707.24 upon application of the Division of Securities is not a final appealable order.
The judgment of the Court of Appeals .is affirmed.
Judgment affirmed.