272 N.E.2d 494 | Ohio Ct. App. | 1971
This cause is before this court on a motion to dismiss the appeal as not being from a final appealable order. The cause originated as an action to contest a will and, after trial to a jury, verdict was rendered finding that the will was not the last will of the decedent. Before judgment was entered on the verdict two of the defendants filed their motion for "a new trial * * * and that the court declare a mis-trial" for reasons which are not pertinent to the decision of this motion but which would be pertinent to a determination of this appeal on its merits. The trial court thereupon ordered that the verdict be set aside and assigned the cause for a (new) trial at a stated date.
It has been held by the Supreme Court that an order declaring a mistrial and continuing the case upon the trial docket does not constitute a final order upon which an appeal may be predicated. Kauffman v. Schauer,
The issue thus resolved is whether an order setting aside a verdict and ordering a new trial pursuant to a motion for new trial filed after verdict and before judgment is a final appealable order.
R. C.
R. C.
The last paragraph of Civil Rule 59(A), which paragraph was derived from Federal Rule 59(a), prescribes that "on a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, * * *." (Emphasis added.)
The conclusion is inevitable that procedure under the civil rules neither precludes the filing of a motion for a new trial after a jury verdict has been rendered and before judgment has been entered thereon nor does such procedure preclude an order sustaining a motion for new trial which does not also result in the vacation of a judgment.
In effect, the Civil Rules permit procedure similar to that which existed prior to 1945 (121 Ohio Laws 366) providing for the vacation of "a former verdict, report or decision" (see G. C. 11576) pursuant to an application for new trial made "at the term the verdict, report, or decision is rendered." (See G. C. 11578.)
In its last attack on the problem of whether an order sustaining a motion for new trial is an appealable order, Price
v. McCoy Sales Service, Inc.,
Since R. C.
Insofar as the same constitutes a final order is there any reasonable distinction between an order for new trial which sets aside a verdict and is made before judgment thereon and an order for new trial which sets aside a judgment? The only practical difference is that the former deprives the successful party of a judgment which, in the normal course of events, would have been entered pursuant to the verdict in his favor whereas the latter takes away from the successful party the judgment which was entered pursuant to the verdict in his favor. The legal effect is the same and we must conclude that the order for a new trial here was as much a final order as the order for a new trial under consideration in Price v. Sales Service, Inc., supra.
Coming to this conclusion, the motion to dismiss the appeal should be overruled and the appeal retained for hearing on its merits.
Motion to dismiss overruled.
COLE and REILLY, JJ., concur.
REILLY, J., of the Tenth Appellate District, sitting by designation in the Third Appellate District. *70