Newark Shopping Center, Inc. v. Morris Skilken & Co.

214 N.E.2d 674 | Ohio Ct. App. | 1964

The plaintiff, appellee herein, has filed an application to dismiss the appeal for the reason that the order of the Common Pleas Court of Franklin County appealed from is not a final order within the meaning of Section 2505.02 of the Revised Code.

The entry appealed from declared a mistrial; granted the plaintiff leave to file a second amended petition and to bring in new parties plaintiff or defendant as the case may be.

Defendant, appellant herein, opposes the motion for a dismissal claiming the declaration of a mistrial is similar to the granting of a motion for a new trial and is appealable for an abuse of discretion. A new trial is a re-examination, in the same court, of the issues after a final order, judgment, or decree by the court. (Section 2321.17, Revised Code.) A mistrial is not a judgment or order in favor of one of the parties.

The court, before the trial was completed, concluded that a defect in the parties plaintiff prevented a proper judgment being rendered and declared a "mistrial." It did not render a final order, judgment, or decree which is appealable under the provisions of Chapter 2505 of the Revised Code.

The motion is well taken and the appeal is dismissed.

Appeal dismissed.

BRYANT and TROOP, JJ., concur.