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SUITA V. SAHLER.

Smith v. Sahler.

1. APPEAL OR PETITION IN ERROR to final order. An order to be final and

subject to review in an appellate court upon appeal or petition in error, must dispose of the whole merits of the case, and leave nothing for the further determination of the court. It must affect a substantial right and determine the action.

2. An order or decree which leaves the law or equity of the case, or some

material question connected with the merits of the controversy, for future determination, is interlocutory, and is not subject to review in any appel

late court on appeal or petition in error. 3. An order dissolving an injunction, when the same is an incident of the

action, and the substantial rights of the parties remain undetermined, is interlocutory and not appealable.

This was a motion to dismiss an appeal. The facts suf. ficiently appear in the opinion of the court.

John H. Sahler, the defendant, in person for the motion.

T. M. Marquette, contra.

MASON, Ch. J.

The error complained of in this cause is the order of the court below, dissolving an injunction which had been al lowed in the cause by William D. Gage, Probate Judge of Cass County.

The defendants in error now move to dismiss the proceeding on the ground that the order dissolving the injunction was not a final order within the meaning of section five hundred and eighty-two of the Civil Code. The prayer of the bill in this case is that a certain judg. ment at law obtained against John Hughes and John H. Sahler, and assigned to the plaintiff, be set off against a judgment obtained by defendant Sahler against the plain. tiff aforesaid ; and that the defendant Sahler, and Joseph W. Johnson, sheriff of the county of Cass, be enjoined

SMITH V. SAHLER.

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from collecting the judgment obtained by Sahler against the plaintiff, and for such other and further relief as equity and good conscience may require.

A writ of error or an appeal lies only to a final order or decree ; and by section five hundred and eighty-one a final order is thus defined : “An order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right made in a special proceeding, or upon a summary application in an action after judgment, is a final order which may be vacated, modified or reversed as provided in this title.”

A decree to be final must dispose of the whole merits of the case, and leave nothing for the further consideration of the court. An order is final when it affects a substantial right and determines the action. An order is interlocutory which dissolves an injunction when the same is an incident of the action, and the substantial rights of the parties involved in the action remain undetermined. When no further action of the court is required to dispose of the cause pending, it is final; when the cause is retained for further action, as in this case, it is interlocutory.Kelly v. Stanbury, 13 Ohio, 408. A writ of error lies only to a final judgment or order of the District Court, or board, or tri. bunal.—Kelly v. Hunter, 12 Ohio, 216; Herf v. Shultze, 10 Ohio, 263.

An order or decree of a court which leaves the law or equity of the case, or some material question connected with the merits of the litigation or controversy, for future determination, is interlocutory, and not a final order or decree.Leaf v. Hewitt, 1 Ohio St. 54; Longworth v. Sturges, 6 Ohio St. 143.

The motion to dismiss the proceeding in error in this cause must be sustained.

Motion sustained.

MEREDITH 0. KENNARD.

Meredith v. Kennard.

1. VERDICT. A verdict which finds two inconsistent facts, is void, and can.

not be the foundation of a legal judgment.

2.

The verdict must respond to all the material issues between the parties.

8. Cases may occur, when a general verdict alone will be a substantial

response, to the issues taken by special matters set up in the pleadings. 4. CHARGE. When the court gives to the jury instructions not required nor

called for by any evidence adduced in the cause, and it appears that such unnecessary instruction mislead the jury in its consideration of the facts of the case, the judgment will be reversed.

5.

If an erroneous charge be given on an abstract proposition, or on a point not in the case, and the verdict is supported by proof in the cause. the judgment will not be disturbed.

McCready, being insolvent, made a deed of assignment of all his property to Meredith, in trust for his creditors. He was largely indebted to Kennard shortly before he made the assignment. Thomas P. Kennard, a brother and attorney of the creditor, applied to McCready to secure his debt. After considerable negotiations, McCready gave to the attorney three notes for $1,000 each, made by McMurphy to McCready's order, and by him indorsed. The attorney having delivered these notes to his principals, they retained the same, and at the same time proceeded to enforce their debt by judicial process. Thereupon, the assignment was made, and Meredith, as assignee, brought this action. It was brought as an action of replevin for the possession of the notes. But the sheriff, not having obtained possession of the property on the writ, the action was prosecuted for damages. It was tried to a jury which returned a verdict for the defendants, upon which judgment was accordingly entered. This petition in error was brought to review the proceedings.

G. W. Doane and E. Wakely, for plaintiff in error.

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MEREDITH V. KENNARD.

I. The verdict was unwarranted by the evidence.

II. The instructions excepted to, ought not to have been given, because there was no evidence to predicate them on.

III. The verdict did not find upon the issue of property. Swain v. Ross, 4 Wis. 150; Rouge v. Dawson, 9 Id. 246; Bemus v. Beckman, 3 Wen. 673 ; Van Benthuysen v. DeWit, 4 John. 213; Dale v. Kennedy, 38 II. 282 ; Hewson v. Saffin, 7 Ohio, 587.

IV. The value of the property was proven, but there was no opposing evidence. Even if no value had been shown, there should have been a verdict for nominal damages.

The demand was clearly proven. Hence, the verdict was unsupported by the evidence, unless the jury were justified in finding that the notes were the property of the defendants. We rest upon the oral argument, and the perusal of the record of the court, that this was most clearly not shown; but, on the contrary, that the notes passed to the assignee as McCready's property.

Redick and Briggs, for defendant in error.

I. All the allegations of the answer are admitted by the failure of the plaintiff to file a replication.

II. The record shows that the defendants sold to McCready a large stock of goods with which he opened a store at Decatur, Nebraska, and that he was indebted for the goods. Some time afterward McCready concluded to sell the store to one John McMurphy, and consulted the Kennards in relation to the sale, and it was agreed and understood between the Kennards, McMurphy and Mc. Cready, that if the store was sold to McMurphy, the proceeds of the sale were to be turned over to the Kennards, to discharge so much of their claim against McCready. The sale was made, and these three notes were taken in

MEREDITH V. KENNARD.

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payment therefor, and were indorsed by McCready and delivered to the Kennards, together with his own note of $1,000, leaving a small balance due the Kennards on the books, which McCready promised to pay in a few days. McCready failing to come up and settle the balance, as he had promised. Kennard tried to abandon the settlement and tendered back the notes, and brought suit on the original account against McCready. McCready refused to accept the notes, and at that time was in failing circumstances, and immediately thereafter made an assignment of all his effects to said Meredith. When that had been done, he demanded of the Kennards the three notes in question, which they refused to give. We say we had a right to the possession of the notes.

1. It was originally agreed that the proceeds of the sale of said store were to go towards the liquidation of the claim of the Kennards against McCready.

2. We tendered the notes back, and he refused to accept them.

3. McCready did not demand of them the notes until he had become bankrupt, and all his property had passed to the assignee, Meredith.

4. If we were not the owners of the notes, we certainly had the right of possession in them as security for our claim.

III. We think the cause ought not to be reversed.

1. There have been two jury trials already, and the question was one of fact and fairly passed upon.

2. The plaintiff failed entirely to prove the value of the property sought to be taken in the action, nor do we think that the court erred in its instruction to the jury. If there had been a settlement between McCready and the Ken. nards in regard to the notes, we were certainly entitled to a verdict; or if we only held to the notes as security for the claiin, we were entitled to a verdict. But the record

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