#### The May Company *v.*The Bailey Company.

*Order for temporary injunction*— In *siiit for ultimate*injunction— *Not a judgment or final order*— Cannot *be reviewed by circuit court, when.*

An order of the^ourt of common pleas granting a temporary injunction in a suit in which the ultimate relief sought is an injunction, is not either a judgment or a final order which may be reviewed by the circuit court on petition in error.'

(No. 11575

Decided February 23, 1910.)

Error to the Circuit Court of Cuyahoga county.

The parties are corporations and rivals in the conduct of department stores in the city of Cleveland. The Bailey Company brought suit in the court of common pleas to enjoin The May Company from further proceeding in a course of unlawful competition by interfering with its contractual rights and property in trading stamps, and unlawfully and fraudulently diverting business. The petition alleged the details of the conduct of the defendant which was alleged to be unlawful, and concluded with a prayer that during the pendency of the action the defendant might be enjoined from continuing its interference, and that upon the final hearing such injunction might be made perpetual, and for general relief. Shortly after the filing of the petition the common pleas court granted a temporary injunction in accordance with the prayer of the petition. The May' Company filed a petition in error in the circuit court to reverse the order of the court of common pleas allowing the temporary injunction. The petition in error was dismissed in the circuit court upon the ground that the order of the common *472pleas court was not reviewable upon error, and that order of dismissal is assigned as error here.

*Messrs. Kline, Tolies & Goff,*for plaintiff in error, cited and commented upon the following authorities:

*Burke*v. *Railroad, Co.,*45 Ohio St., 631; *Railway Co.*v. *Hamilton,*3 C. C., 455; *Furniture Co.*v. *Railroad Co., 7*N. P., 640; *Missionary Society*v. *Ely,*56 Ohio St., 405; Sections 6707 and 6709, Revised Statutes.

*Mr. Thomas H. Hogsett*and *Messrs. M. B. & H. H. Johnson,*for defendant in error, cited and commented upon the' following authorities:

*Village of Canfield*v. *Brobst,*71 Ohio St., 42; 2 High on Injunctions, Section 1693; *Burke*v. *Railroad Co.,*45 Ohio St., 631; *Railway Co.*v. *Burke,*10 Dec. Re., 136, 20 W. L. B., 287; *Dustin*v. *Bauer,*11 W. L. B., 191; *Missionary Society*v. *Ely,*56 Ohio St., 405.

By the Court.

Counsel for the plaintiff in error rely upon the case of *Burke*v. *Railway Company,*45 Ohio St., 631, as authority for the conclusion that the order of the court of common pleas in this case was reviewable under Section 6709 as a final order, and that it is within the definition of a final order as given in Section 6707, Revised Statutes. It is not claimed that the court of common pleas in allowing the temporary injunction rendered a final judgment in the case, or that it made an order which determines an action and prevents a judgment. The *473precise claim is, that it made “an order affecting a substantial right made in a special proceeding.” Whether the order involved in the case of *Burke*v. *Railway Company*was or was not an order affecting a substantial right made in a special proceeding, it is entirely clear that the order in the present case is not of that character. This was a suit for injunction. The order of the court of common pleas was not ancillary to the exercise of its jurisdiction upon any other subject. The application for, and allowance of, the temporary injunction was a part of the ancient suit in equity administered in the main case without any provision of the statute authorizing it, or providing for it, as a proceeding in an action. There was no occasion for dividing up the case, leaving part of it in the court of common pleas, while a part of it was taken to the circuit court. The questions involved in the allowance of the temporary injunction were not different from those which would be involved in a consideration of the final judgment, and the case should have been disposed of wholly in the court of common pleas, before a resort was had to the jurisdiction of the circuit court. This view of the subject derives some support from the provisions of Section 5226, Revised Statutes, providing for an appeal to the circuit court from an interlocutory order dissolving an injunction, as well as from what we understand to have been the consistent practice upon the subject.

*Judgment affirmed.*

Summers, C. J., Crew, Spear, Davis, Shauck and Price, JJ., concur.