#### Gardell, Appellant, *v.*The Cincinnati Street Ry. Co., Appellee.

(No. 7062

Decided April 4, 1949.)

*548*Mr. J. G. Williams,*for appellant.

*Mr. Leo J. Brumleve,*for appellee.

Hildebrant, J.

Plaintiff was injured in a collision between the automobile in which she was seated and one of defendant’s streetcars. On trial, on the question of damages alone, the jury returned a verdict for plaintiff, upon which a judgment was *pro forma*entered.

On defendant’s motion for new trial, duly filed, the following entry, entitled “Entry Setting Aside Judgment and Ordering New Trial” was journalized:

“This cause coming on to be heard upon the defendant’s motion for new trial and the plaintiff’s motion for reconsideration of decision on motion for new trial, was argued by counsel and submitted to the court, who, being fully advised in the premises, finds that the statements of counsel for the defendant in his argument and the statements of counsel for the plaintiff in his closing argument ‘were improper and prejudicial and are of such a nature as to prevent a fair and impartial trial,’ by reason of- all' of which the court hereby sets aside the judgment heretofore rendered herein and orders a new trial.

‘ ‘ To all of which the plaintiff excepts. ’ ’

That is the order appealed from to this court.

Defendant has moved to dismiss the appeal as not being predicated upon a final order.

By judicial construction of the amended Constitution of 1912, Section 6, Article IY, defining the jurisdiction of the Courts of Appeals, the term “judgments” was held to comprehend all decrees and final orders rendered by a court of competent jurisdiction and which determine the rights of the parties affected *549thereby. *Chandler & Taylor Co.*v. *Southern Pacific Co.,*104 Ohio St., 188, 135 N. E., 620. In the second paragraph of the syllabus it is stated:

“An order vacating a default judgment upon motion of the defendant, filed at the same term, but more than three days after its rendition, is not a final determination of the rights of the parties and is not reviewable unless the court abuses its discretion in making it.”

The Appellate Procedure Act (Section 12223-27, General Code), in providing for the exercise of the appellate jurisdiction in appeals on questions of law, refers to judgments and final orders, so that both by judicial and legislative construction, not only judgments in the technical sense, but final orders also are reviewable on appeal.

Effective August 23, 1937, the Legislature amended Section 12223-2, General Code, by providing that vacating or setting aside a general verdict of a jury and ordering a new trial was a final order. *Hoffman*v. *Knollman,*135 Ohio St., 170, 20 N. E. (2d), 221, held the amendment unconstitutional, and stated in the second and third paragraphs of the syllabus:

“An order of a trial court setting aside a general verdict of a jury and granting a new trial is not a final determination of the rights of the parties and is not, therefore, a judgment or final order reviewable by the Court of Appeals, unless it clearly appears that the trial court has abused its discretion in granting such order.

‘ ‘ The jurisidiction of- the Court of Appeals is conferred by Section 6, Article IV of the Constitution, and cannot be enlarged or curtailed by legislative action. ’ ’

The present amended Section 12223-2, General Code,passed after the constitutional amendment of Novem*550"ber 7,1944, effective January 1, 1945, became effective on September 30, 1947. The petition herein was filed on October 15, 1946, so that Section 12223-2, General Code, in its present form has no application to this case. *Von Gunten*v. *New Justice Coal Co.,*147 Ohio St., 511, 72 N. E. (2d), 253.

In *Steiner*v. *Custer,*137 Ohio St., 448, 31 N. E. (2d), 855, it is stated in the first and second paragraphs of the syllabus:

“The granting of a motion for a new trial is not such a final order as may be reviewed on appeal, unless it clearly appears that the court granting such motion abused its discretion in so doing.

“The meaning of the term ‘abuse of discretion’ in relation to the granting of a motion for a new trial connotes more than an error of law or of judgment; it implies an unreasonable, arbitrary or unconscionable attitude on the part of the court.”

It thus clearly appears that under the Constitution as amended in 1912, in the absence of an abuse of discretion, the granting of a motion for new trial is not an appealable order.

The Constitution as amended on November 7, 1944, effective January 1, 1945, now provides:

“The Courts of Appeals shall have original jurisdiction in quo warranto, mandamus, habeas corpus, prohibition and procedendo, and such jurisdiction as may be provided by law to review, affirm, modify, set aside, or reverse judgments or final orders of boards, commissions, officers, or tribunals, and of courts of record inferior to the Court of Appeals within the district. * * * All laws now in force, not inconsistent herewith, shall continue in force until amended or repealed; provided, that all cases, actions, or proceedings pending before or in any board, commission, officer, tribunal, or court on the first day of January, 1945, shall be *551heard, tried, and. reviewed in the same manner and by the same procedure as is now authorized by law.”

It is contended that since the Legislature may now by law provide the jurisdiction of the court that the statutes now in force, Section 12223-2, General Code, defining a final order, and Section 12223-27, General Code, providing for appeal on questions of law of a judgment or final order, and Section 12223-3, General Code, making every final order reviewable, as later provided, somehow make the order here reviewable as a final order.

It has been pointed out hereinbefore that Section 12223-2, General Code, as amended, effective September 30, 1947, does not apply in this case, and that the law under the statute in its earlier form was fixed in *Hoffman*v. *Knollman, supra.*

In *Youngstown Municipal Ry. Co.*v. *City of Youngstown,*147 Ohio St., 221, 70 N. E. (2d), 649, it is stated in the syllabus:

“1. Section 6 of Article IV of the Constitution of Ohio, as amended November 7, 1944, empowers but does not require the General Assembly to change the appellate jurisdiction of the Courts of Appeals.

*“2.*Unless and until there is such legislative action, the appellate jurisdiction of the Courts of Appeals remains as it was at the time the amendment was adopted.”

The court has not overlooked the query which occurs as to the effect of the amended statutory definition of a new trial, Section 11575, General Code, and the changed character of the motion as being addressed to the vacation of a judgment as set forth in Section 11578, General Code. This court has expressed its views on that query in *McAtee*v. *Western & Southern Life Ins. Co.,*82 Ohio App., 131, 81 N. E. (2d), 225, to which reference is hereby made.

*552Nevertheless, the object of the motion remains the same, viz., to secure a retrial free from prejudicial error, and the fact that a *pro forma*judgment, tentatively entered, is set aside is incidental to the object of the motion, and, on its being’ g’ranted, the order does not in effect determine the action and prevent the judgment, since, on retrial, the same result, for aught that is known, may obtain.

Attention is directed also to the language of Section 12223-2, G-eneral Code, in effect at the time of the adoption of the 1944 amendment of Section 6, Article IY, of the Ohio Constitution, and representing the conception of the bench and bar at that time as to the definition of a final order, to wit: An order affecting a substantial right in an action, when in effect it determines the action and prevents a judgment. This court adheres to the view taken by it in *Ryan*v. *Kroger Grocery & Baking Co.,*56 Ohio App., 469, 11 N. E. (2d), 204, wherein it is stated in paragraph one of the syllabus :

“A judgment or final order from which an appeal may be taken to the Court of Appeals is one that divests some right in such a manner as to place it beyond the power of the court making it to place the parties in their original position after the expiration of the term at which it is made.”

Prom an examination of the record, this court finds no abuse of discretion on the part of the trial court in granting a new trial.

The appeal is, therefore, dismissed.

*Appeal dismissed.*

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