563 N.E.2d 54 | Ohio Ct. App. | 1989
This matter is before the court sua sponte.
Appellee, Steven W. Yee, was indicted by a special federal grand jury sitting in Cleveland on several counts for the commission of federal crimes on March 3, 1989, and was subsequently arrested by the FBI. Thereafter, appellee was charged with six counts of aggravated murder, murder, kidnapping, and aggravated robbery in Erie County. The Erie County Court of Common Pleas set trial for August 9, 1989, denying the prosecution's motion for a continuance, stating that an order from this appellate court was necessary to establish that appellee was unavailable for trial due to the pending federal case.
On August 7, 1989, appellant, state of Ohio, sought leave of this court to file a notice of appeal from the denial of the continuance.1
We granted appellant's motion due to the fact that the trial court expressly intended to proceed with appellee's trial on August 9, 1989, even though it did not have jurisdiction to do so under Ponzi v. Fessenden (1922),
Upon a review of Ohio law, however, we find that the granting or denial of a motion for continuance or stay of proceeding is not a final, appealable order. See General Elec. Supply Co. v.Warden Elec., Inc. (1988),
The aforementioned cases generally hold that such an order is not final and appealable because the requirements of R.C.
The General Electric case also involved the issue of a stay of proceedings pending arbitration. The Supreme Court of Ohio followed the reasoning in Pewter Mug and found that an appeal after the final judgment was rendered was more practical and would not prejudice the complaining party. General Electric,supra, at 381,
In the Milo case, the Supreme Court of Ohio held that an order staying a civil case while a related criminal case was being reviewed by an appellate court was not a final, appealable order. Again, the court found that the order did not affect a substantial right, determine the action, or prevent a judgment.Milo, supra, at 116, 9 OBR at 342,
The New Union Depot case involved an appeal from the Public Utilities Commission's refusal to continue a hearing before it regarding the construction of a new union depot. With no analysis whatsoever, the court held that the appeal was taken from an order which was not final and appealable. New Union Depot,supra.
Finally, in the Points case, the court avoided the issue of whether a denial of a motion for a continuance was proper by finding it moot because the entire case had been dismissed with prejudice. However, the court noted in passing that generally such orders are not final and appealable, citing no authority.Points, supra.
There is, however, a line of cases which hold that the granting or denial of the motion for a continuance is a final, appealable order if an abuse of discretion is shown. See Aero-Lite WindowCo. v. Jackson (1962),
Both of the aforementioned cases rely on Norton v. Norton
(1924), *90
We are unable to distinguish the Norton line of cases from those which held that the granting or denial of a motion for a continuance is not a final, appealable order. Although we would agree that the granting or denying of a motion for a continuance is a discretionary matter subject to review by an appellate court, we do not understand the court's reasoning for reviewing the decision prior to final judgment in the case.
When we view the case sub judice in light of the requirements of R.C.
Appeal dismissed.
CONNORS and ABOOD, JJ., concur.