Yendes v. Shaw (81 Ohio App. 232, 1947)

Wiseman, ,P. J.

This cause is submitted on motion to dismiss the appeal on the ground that the order appealed from is not a final order.

The defendant, appellant herein, filed three separate defenses and a cross-petition. The trial court sustained -a demurrer to the second and third defenses and the cross-petition. The defendant not desiring to plead further, the second and third defenses and the cross-petition were dismissed. -

An order sustaining a demurrer without dismissing the action is not a final order, as the court may grant leave to amend. National Guarantee & Finance Co. v. Russell, 25 Ohio Law Abs., 483. However, an order' sustaining a demurrer to the second and third defenses and cross-petition and dismissing the defenses and cross-petition is a final order under the provisions of Section 12223-2, General Code, from which an appeal may be taken. Latham v. Ransome Concrete Machinery Co., 13 Ohio Law Abs., 63; Morehead v. Central Trust Co., Exr., 54 Ohio App., 9, 5 N. E. (2d), 932. The motion to dismiss the appeal is overruled.

Motion overruled.

Miller, and Hornbeck, JJ., concur.