State, ex rel. Overmeyer v. Walinski

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.