#### The Ohio National Life Ins. Co., Appellee, *v.*Struble et al., Appellants.

(No. 6826

— Decided July 7, 1947.)

*Messrs. Rettinger, Schmitt & Kreis*and *Mr. Bert H. Long, for*appellee.

*Mr. Robert N. Gorman, Mr. Roy L. Struble*and *Mr. Harold G. Knecht,*for appellants.

*532Matthews, P. J.

The motion to remand, etc., this case presents to the court the question whether the order appealed from is a final order. If it is not, the jurisdiction of the court is limited to dismissing the appeal, which, in effect, would be no more than an order striking papers from the files of this court and returning them to the files of the court from which they should not have been taken. No order to that court could be made. If the order appealed from is a final order, this court has jurisdiction and should proceed in due course to hear the appeal on its merits.’

' The plaintiff’s petition in this ease sets forth an action for a judgment declaring whether certain proceedings for plaintiff’s mutualization, under Section 9364-1 *el seq.,*General Code, are valid, and declaring the rights of the defendants as dissenting shareholders. After the petition was filed, the defendants, acting on behalf - of themselves, the corporation and other shareholders, instituted an independent action seeking an injunction against the mutualization or, in the alternative in the event the injunction should be denied, the fair cash value of their stock.

Later, on motion; an order was made consolidating these two actions and directing that the second amended petition filed in the other action should stand as the answer and cross-petition herein.

After certain amended pleadings were filed, this action finally came on for trial and eventually an order was made in the following language:

“This cause came on for hearing on the pleadings, the evidence and briefs of counsel and was argued and submitted to the court, and on June 15, 1943, the court rendered an opinion, which was journalized as the findings of the court; thereafter the defendants filed a motion for a new trial and a motion for judgment-in their favor, which'said motions were argued to the *533court, and the court, being fully advised in the matter, and upon consideration thereof finds that neither of said motions is well taken and hereby overrules the same; and the court desiring to make effective its opinion and finding of June 15,1943, and to declare the rights of the parties hereby declares, adjudges and decrees that Sections 9364-1 and 9364-8, both inclusive, of the General- Code of Ohio are constitutional and valid enactments, that the plan of mutualization as set forth in the petition was duly adopted by the plaintiff in accordance with the provision of said sections of the General Code of Ohio, and is free from fraud, actual or constructive, and is in all respects valid.

“To all of which the defendants except.

“The court further finds that the defendants, Roy L. Struble and Harold C. Knecht, as the owners respectively of 37 and 32 shares of stock in the plaintiff company and as dissenting stockholders are entitled to be paid the fair cash value of such shares as of July 29, 1941, in accordance with the provisions of Section 9364-2a of the General Code of Ohio, and the court hereby appoints Hugh D. Rankin and Wm. M. Corcoran and Cecil L. Hall as appraisers to determine the fair cash value of said shares, and hereby directs said appraisers to proceed to make such determination and to report the same to this court within-days.

“Defendants except to the placing of this entry upon record before the entire case is disposed of as contrary to the ruling in *Von Gunten v. New Justice Coal Co.,*147 Ohio St., 511.”

The appeal was taken from that order.

By complying with Section 9364-1, General Code, a domestic stock life' insurance corporation is given the absolute right to convert itself into a mutual life insurance corporation. When a majority of the shareholders and a majority of the policyholders have *534approved the plan and the other conditions have been complied with, minority shareholders have no power to veto the plan. Their alternative is to either accept the plan or, by invoking the procedure set forth in Section 9364-2®, General Code, have the fair cash value of the stock determined in the manner provided therein. In the event the dissenting shareholders and the corporation cannot agree, the proceeding therefor is by petition to the Common Pleas Court and, upon finding that a shareholder is entitled to have the fair cash value of his stock, the court appoints three appraisers to determine the value, and the cause proceeds to judgment as provided by statute. The proceeding is entirely statutory and special and is so declared in Section 9364-2®, General Code, in these words:

££ Such a proceeding shall be deemed to be a special proceeding within the meaning of Section 12223-2 of the General Code, and final orders therein may be reviewed, affirmed, modified or reversed as provided in Title V, Part Third, of the General Code. ’ ’

The proceeding by the corporation to convert from *a,*stock to a mutual company precedes the institution of the special proceeding to have the stock of a dissenting shareholder valued. The validity of the corporate action is not drawn in question in that proceeding. The only questions that arise therein are whether the shareholder has taken the requisite steps to assert his right to the fair cash value of his stock and what that fair cash value is.

The plaintiff’s petition did not set forth a cause of action under Section 9364-2®, General Code, to have the value of the defendants’ stock fixed. It set forth a cause of action for a judgment declaring that its proceedings for mutualization were valid and binding upon both consenting and nonconsenting persons. *535When the court made that declaration, it granted all the relief to which, the plaintiff was-entitled, and, by Section 12102-1, General Code, “such declarations shall have the force and effect of a final judgment or decree.” No further judicial act was left to be performed. The special proceeding to fix the value of the dissenters’ stock necessarily followed in point of time and was predicated upon a valid mutualization proceeding by the corporation. So far as the corporate action was concerned, it was entirely irrelevant. The right to the fair cash value arose out of- the mutualization proceeding, but.was not involved in it. It is only because of the consolidation of these two cases that the validity of the mutualization plan and the proceeding to fix the fair cash value of the dissenters’ stock appear to be involved with one another. Normally, they would be entirely separate and distinct. If there is any relationship, the proceeding to fix the value of the stock is collateral and ancillary, following the declaratory judgment. In this respect, the eases resemble the case of *State, ex rel. K. W. Ignition Co.,*v. *Meals et al., Judges,*93 Ohio St., 391, 113 N. E., 258, in which the court, in respect-to an order granting an injunction, ordering'an accounting and appointing a referee, said at page 395:

“The general equities of the case were found in favor of the plaintiff, and while the further order of the court was necessary to carry into effect the right settled by the order, it was merely auxiliary to or in execution of the order of the court made on the merits of the case, and we are of the opinion that the Court of Appeals had jurisdiction of the subject matter on appeal.”

Counsel cite the case of *Von Gunten*v. *New Justice Coal Co.,*117 Ohio St., 511, as repudiating the proposition that, a ruling of the court can be split and two *536judgments rendered, even though the action is part in law and part in equity. Without doubt, the court did hold in that case that where only part of the issues .are submitted to and determined by the jury, proceedings for a new trial, taken before there is a finding upon, or decision of, the remaining issues by the court, are premature, but that falls far short of a holding that in no case may a final order be made unless thereby every issue between the parties is thereby adjudicated. What the court said in the *Von Gunten case*must be construed in the light of the facts of that case and in the light of those facts it is clear that the court had no intention of announcing that there could never under any circumstances be but one final order •or judgment in any case. When we remember the .liberality with which causes of action may be joined in this state, the impracticability of such a rule becomes apparent. That there is nothing sacrosanct in the common-law rule that only one final judgment can-be rendered is clear. *Beauvais, Exrx.,*v. *Springfield Institute for Savings,*303 Mass., 136, 20 N. E. (2d), 957, 124 A. L. R., 611. That rule presupposes that only one cause of action is present. It was established long before statutes greatly enlarging the rights to join causes of action were enacted. It was never intended to apply to an action like the present where, by consolidation, a civil action and a special proceeding have been joined in a single action.

The *Von Gunten case*was a controversy between the parties arising out of a lease of coal land. Each claimed the other had violated- various provisions of the lease and prayed for both legal and equitable relief. Although, in that case, the plaintiff’s petition in form contained several causes of action, in legal effect it ■stated one cause of action for several breaches of the terms of the lease. 9 Ohio Jurisprudence, 627, *537Section 376. In *Cockley*v. *Brucker,*54 Ohio St., 214, 227, 44 N. E., 590, it is said:

“If from the nature of the contract, and the breach, thereof, the party injured has sustained damages, and has also other property rights under' the contract, he-must include his whole claim in one action, and if he-omits a part, and recovers judgment for-a part only,, he cannot sustain another action for the-- omitted part, because the whole injury caused by the breach of the contract, is merged in the judgment recovered on the-part sued for. A single cause of action cannot be split up i,nto two or more causes of action; neither can two. or more actions be sustained against the same party, on a single cause of action.”

See, also, 1 American Jurisprudence, 487, Section 105.

The controversy between the parties in the *Von Gunten case*related to a single contract. There was no separate and distinct cause that could be adjudged without disposing of the whole case. It was in the light of those facts that the court held that so long as any issue between the parties remained undetermined, there could be no finality to any order and that the verdict of a jury deciding some issues, but not all, was not such a verdict as started the running of time within which a motion for a new trial should be filed.

It has long been the rule in this state that a court can finally dispose of a separate and distinct cause of action and reserve other issues for future consideration and adjudication, without destroying the finality of the order made. In *Teaff*v. *Hewitt,*1 Ohio St., 511, 59 Am. Dec., 634, the plaintiff there sued to foreclose a mortgage and to enjoin certain creditors of .mortgagor from detaching fixtures from the mortgaged premises. The mortgaged premises were decreed to be sold by *538the court, the injunction dissolved as to some of the fixtures, and a master appointed to determine what the fixtures would have sold for.had the.sale not been delayed by the injunction. After the master had reported, a judgment for money was rendered against the plaintiff in favor'of some of the mortgagor’s execution creditors. An appeal was taken and one of the questions presented was whether the appeal opened up “the merits of the case touching the property as to which the injunction had been dissolved.” The court held that the appeal brought for review only the decree based on the-master’s report and left undisturbed the .decree "under which the mortgaged premises had been sold. On that subject, the court, at pages 520 and 521, said:

“A final decree is one which determines and disposes-of the whole merits of the cause before the court or a branch of the cause which is separate and distinct from the other parts of the case, reserving no further questions or directions for future determination; so that it will not be necessary to bring the cause or that separate branch of the cause again before the court for further decision. It is true, that after final decree defining and settling the rights of the parties, further orders " or decrees may be necessary to carry into effect the rights settled by the final decree on the merits; such as a decree confirming a sale, or confirming the proceedings or report of a master, carrying into effect the terms of the final decree. This, however, is a subsequent proceeding, and only auxiliary to or in execution of the final decree on the merits of the case. And an appeal from a decree in this subsequent proceeding, brings nothing before the court except the proceedings which follow the final determination of the merits, *Hey*v. Schooley, 7 Ohio, pt. 2, *53948; 5 Cranch, 313; 10 Wheat., 442. An interlocutory decree is one which leaves the equity of the case, or some material question connected with it, for future determination. Where the further action of the court is necessary to give the complete relief, contemplated hy the court iipon the merits, the decree under which the further question arises, is to be regarded not as final but as interlocutory. *Cocke*v. *Gilpin,*1 Rob. Va., 20.

“The case before us presents a double aspect for the subject matter of a decree. The object of the bill was to sell the mortgaged premises and apply the proceeds of the sale to the payment of Hewitt’s indebtedness to complainant, and also to enjoin the proceedings under the judgments of the other creditors of Hewitt, and prevent the 'sale of the machinery in the manufactory, which the complainant claimed to be' a part of the realty and to be covered by his mortgage. After the dissolution of the injunction, the respondents who were judgment creditors of Hewitt, sold the property as to which' the injunction was dissolved, on execution. At the May term of the common pleas 1850, Teaff the complainant took his decree upon one branch of the case against Hewitt for the amount of his debt with interest and cost of suit, and in default of the payment of the same, for the appraisement and sale of the mortgaged premises, including the steam engine and boilers, as to which the injunction had not been dissolved. The decree upon this branch of the case, at that term was complete and final; no further action of the court was requisite. The defendants did not appeal from this decree, but acquiesced in it; and this part of the case is not now in controversy, as it appears,between the parties.” .

See, also, *Evans*v. *Dunn,*26 Ohio St., 439; *McRoberts*v. *Lockwood,*49 Ohio St., 374, 34 N. E., 734. The Ohio *540definition seems to conform to that of other jurisdictions. 31 American Jurisprudence, 93 *et seq.,*Sections 434 and 435.

We, therefore, hold that the order of April 19, 1947, is a final order or judgment, and that this court has jurisdiction to review it on appeal. For that reason, the motion to remand or dismiss this appeal is overruled.

*Motion overruled.*

Matthews, P. J., Ross and Hildebrant, JJ., concur in the syllabus, opinion and judgment.