#### The State, ex rel. Simons, Appellant, *v.*Kiser, Appellee.

(No. 684

Decided August 22, 1950.)

*182
      *Messrs. Spidel, Staley db Hole,*for appellant.

*Mr. T. A. Billingsley,*for appellee.

Wiseman, J.

This case is submitted on motion of defendant, appellee, to dismiss the appeal on the ground that the plaintiff, appellant, has appealed from an order granting a motion for new trial for one of the reasons contained in the motion for a new trial and that such order is not a final order from which an appeal may be taken.

The sole question presented is whether an order granting a motion for a new trial is a final order from which an appeal may be taken.

This action,. which is one in bastardy, was commenced February 13, 1948, and, therefore, the question presented must be determined under Section 6, Article TV, of the Ohio Constitution, as amended effective January 1, 1945, and the provisions of Section 12223-2, General Code, as amended effective September 30, 1947. We find no reported opinion deciding this precise question.

In 1937 Section 12223-2, General Code, which defines a “final order,” was amended by including in the definition “an order vacating or setting.aside a *general verdict*of a jury and ordering a new trial.” The effect of this amendment was before the Supreme Court in *Hoffman*v. *Knollman,*135 Ohio St., 170, 20 N. E. (2d), 221. In that case, which was decided in 1939, the court held that the jurisdiction of the Court of Appeals was conferred by Section 6, Article IV of the Ohio Constitution, and could not be enlarged or ■ curtailed by legislative enactment; that Section 12223-2, General Code, as amended effective August 23, 1937, would, if given effect, enlarge the jurisdiction of the Court of Appeals and, therefore, was in conflict with Section 6, Article IV of the Constitution.

*183Finally, the court held that unless it clearly appears that the trial court abused its discretion in granting the order, an order of a trial court setting aside a general verdict of a jury and granting a new trial is not a final order reviewable by the Court of Appeals.

In 1944 Section 6, Article IV of the Ohio Constitution, was amended effective January 1, 1945. The constitutional provision which relates to the question presented is:

“The courts of appeals shall have * * * 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 * * *.” (Emphasis ours.)

The purpose of this amendment was to authorize the Legislature to enlarge the jurisdiction of the Court of Appeals, if the Legislature deemed it advisable. In 1947, the Legislature, acting under this constitutional grant of power, again amended Section 12223-2, General Code, effective September 30, 1947, by including in the definition of a final order “an order vacating or setting aside- *a judgment*and ordering a new trial.” Attention should be- called to the fact that the 1937 amendment to Section 12223-2, General Code, provided that an order vacating or setting aside a “general verdict of a jury” and ordering a new trial was a final order, whereas the 1947 amendment provides that an order vacating or setting aside “a judgment” and ordering a new trial is a final order. The 1937 amendment conformed to other provisions of the Code of Civil Procedure in effect at that time. However, certain sections of the Code have since been amended changing the procedure which necessitated the substitution of the word, “judgment,” for the word, “verdict,” in the 1947 amendment. Under Sections 11576 *184-and 11578, General Code, as amended effective October 11, 1945, an application for a new trial is no longer filed after the verdict is returned, but rather after judgment of the court has been entered. Consequently, the application for new trial is necessarily directed to the judgment as well as the verdict of the jury in cases tried to a jury. Under the present Code an order of the trial court sustaining an application for a new trial necessarily involves the vacating and setting aside of the judgment. In the instant case, the motion for new trial was in legal effect a motion to vacate a judgment as well as a motion for neAv trial. *McAtee*v. *Western & Southern Life Ins. Co.,*82 Ohio App., 131, 81 N. E. (2d), 225. In the *McAtee case,*Judge Ross, writing the opinion, raised the question as to whether, under the amendment to Section 6, Article IV of the Ohio Constitution, the Legislature “changed the character of the action of the court in *overruling a motion for new trial*by reason of the new function of a motion for new trial in its attack upon a judgment, rather than upon a verdict,” as provided in Section 11578, General Code, as amended effective October 1Í, 1945. The court concluded “that the *overruling of a motion for new trial*is a final order in that as to actions commenced after October 11, 1945, the motion is essentially a motion to vacate a judgment as well as a motion for a new trial.”

In the *McAtée case*the order appealed from was an order overruling a motion for new trial, whereas in the ease at bar the order appealed from is an order sustaining a motion for new trial. The order appealed from affects the substantial right of the appellant. We do not deem'it essential to a decision on the issue presented that this court hold that the order appealed from carries with it the finality of a judgment. In *Hoffman*v. *Knollman, supra,*the court was, confronted *185with the constitutional provision which limited the jurisdiction of a court of appeals to review of judgments. In that case the court held that ah order sustaining a motion for new trial and setting aside a general verdict of the jury did not carry with it the finality of a judgment. Section 6, Article IV of the Ohio Constitution, now provides that the Courts of Appeals shall have “such jurisdiction as may be provided by law to review * * * judgments or final orders. ” We conclude that the Legislature acted within its constitutional grant of power in amending Section 12223-2, General Code, by providing that a final order shall include “an order vacating or setting aside a judgment and ordering a new trial.” Unquestionably, the purpose of the amendment was to permit such action of the trial court to be reviewed, which in many cases would obviate the necessity of a retrial. See 2 Ohio Jurisprudence, 203, Section 106. ■ .

The motion to dismiss is overruled.

*Motion overruled.*

Miller, P. J., and Hornbeck, J., concur.