State, ex rel. Overmeyer v. Walinski

Ohio

Court: Supreme Court of Ohio

Citations: 8 Ohio St. 2d 23, 37 Ohio Op. 2d 358, 222 N.E.2d 312, 1966 Ohio LEXIS 299

Decision Date: 12/14/1966

Docket Number: No. 40429

Jurisdiction: OH

Bluebook Citation: State, ex rel. Overmeyer v. Walinski, 8 Ohio St. 2d 23, 37 Ohio Op. 2d 358, 222 N.E.2d 312, 1966 Ohio LEXIS 299 (Ohio 1966)

More Cases: Ohio decisions from 1966

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Cites 2 cases

Schindler v. Standard Oil Co.
Priester v. State Foundry Co.

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Opinion

The State, ex rel. Overmeyer, v. Walinski, Judge of the Common Pleas Court of Lucas County.

Judges

Taft, C. J., Zimmerman, Matthias, O’Neill, Herbert, Schneider and Brown, JJ., concur.

Attorneys

Messrs. Cline, Bischoff £ Cook and Messrs. Brown, Good-pasture £ Block, for relator.
Mr. Marcus L. Friedman, for respondent.

majority Per Curiam.

This is an action in mandamus originating in this court. In this action, relator seeks an order compelling the respondent judge to enter summary judgment in his behalf.

Relator, as owner and publisher of the Toledo Monitor, was joined as a defendant with the Monitor in an action for libel.

Relator filed a motion for summary judgment on his own behalf. After a hearing thereon, respondent trial judge denied the motion for summary judgment. He now contends that the judge had a mandatory duty to enter summary judgment in his favor.

Relator contends that he has no appeal from the denial of the summary judgment, and that he will be irreparably injured because he will have to come to Toledo from New York for the trial in the libel action.

An order denying a motion for summary judgment is not a final appealable order. See Priester v. State Foundry Co., 172 Ohio St. 28. Such order is similar to the overruling of a demurrer, which is not a final appealable order. Schindler v. Standard Oil Co., 165 Ohio St. 76.

Mandamus cannot be used as a substitute for appeal or create an appeal from an order which is not a final order, which relator seeks to do in this action. 35 Ohio Jurisprudence 2d 377, Mandamus, Section 100.

Writ denied.

Taft, C. J., Zimmerman, Matthias, O’Neill, Herbert, Schneider and Brown, JJ., concur.