Merchants National Bank v. Feiss

This case was submitted upon a motion to dismiss the proceedings in error on the ground that the court has no jurisdiction of the subject matter.

A special master was appointed to take testimony and report his findings. Upon application to fix the compensation of the master the court made an allowance “without hearing evidence, but on the admissions of the defendants, that said amount is “reasonable” to be advanced by certain defendants and taxed as costs, execution being awarded therefor.

The appointment was made to aid the 3ourt in rendering a final judgment, which has not yet been done, and the allowance of compensation is not unlike an order to pay other costs made during she progress of the case, as upon a motion for *744continuance. Upon final judgment the court might adjudge that the compensation advanced to the master by one or more defendants be recovered from the other defendants.

We think that this is not a special proceeding within the meaning of that clause of section 6707, which provides that an order affecting a substantial right made in a special proceeding is a final order which may be vacated, modified or reversed as provided in title IV of the Revised Statutes. Mitchel v. Rammelsberg, 4 W. L. B., 294; Warren v. McKenzie, 23 Ohio St., 626.

Motion sustained.