Vockell v. Selmeier , 77 Ohio App. 401 ( 1946 )

In a forcible entry and detainer action before a justice of the peace who rendered judgment of restitution, an appeal on questions of law was taken to the Court of Common Pleas, where the judgment was reversed. The appeal here on questions of law attacks the legality of the appeal to the Court of Common Pleas, it being claimed there was a failure to file the notice of appeal required by law.

This court has no jurisdiction to consider the errors complained of, for the reason that under the statute no final order has been entered in the court below. Section 12223-26, General Code, provides:

"Except when the reversal is because the justice has no jurisdiction of the appellant or of the subject of the action, the cause shall be retained by the court for trial and final judgment."

The judgment of reversal, not being for lack of jurisdiction, is, therefore, not a final order, and the cause must be retained for trial by the court below and proceed to judgment before an appeal may lie here. McLean v. Johnson, 20 C.C. (N.S.), 503, 31 C.D., 403; Kelley v. Hunter, 12 Ohio, 216; Longworth v. Sturges,6 Ohio St. 143; Ry. Co. v. Bailey, 39 Ohio St. 170; Bradley v.Wacker, 13 C.C., 530, 7 C.D., 565.

The appeal is dismissed.

Appeal dismissed.

HILDEBRANT, P.J., MATTHEWS and ROSS, JJ., concur in the syllabus, opinion and judgment.