South Cleveland Banking Co. v. Nachtrieb

This case is heard on a motion to dismiss the appeal which was taken by one Crowell, who was not a party to the proceeding but was interested in the result. Crowell was appointed by the common pleas court in this action as receiver of the property of H. N. Nachtrieb. When his report was filed as such, the court of common pleas found a certain amount of money to be in his hands as such receiver, and ordered that the entire amount be distributed to the creditors, and that the receiver should have no compensation for his services. This order was made on October 26, 1904.

On December 15, 1904, Crowell made a motion in the same court to have the order and judgment set aside. This motion was overruled, and it is from this order of the court overruling said motion that Crowell gave notice and bond, and filed transcript for appeal to this court. The motion now disposed of is made by the South Cleveland Banking Co., on the ground that the order is not appealable. The final order in the case was that *731of October 27, 1904, and without consideration of the question whether Crowell might or might not appeal the case, it is perfectly clear that what he seeks to appeal is not the final order of the court of common pleas.

The statutes provide within what time thereafter proceedings may be taken. Crowell allowed the case to rest from that day until December 15, and then filed a motion to set aside that final order of October. The court refused to set it aside. If an appeal can be taken from such an order, all one has to do who desires to appeal his case is to leave the final order, pay no attention to it until a convenient season, and then file a motion to have it set aside. There is nothing here for anybody to appeal from. The motion to dismiss the appeal is sustained.