# State, ex rel. Overmeyer v. Walinski

> Ohio Supreme Court · December 14, 1966 · 8 Ohio St. 2d 23

URL: https://www.frixlaw.com/law-library/cases/6753735

## Case

- **Full name:** The State, ex rel. Overmeyer v. Walinski, Judge of the Common Pleas Court of Lucas County
- **Court:** Ohio Supreme Court
- **Decided:** December 14, 1966
- **Citations:** 8 Ohio St. 2d 23; 37 Ohio Op. 2d 358; 222 N.E.2d 312; 1966 Ohio LEXIS 299
- **Precedential status:** Published
- **Opinion:** Opinion of the court
- **Judges:** Brown, Herbert, Matthias, Neill, Schneider, Taft, Zimmerman
- **Cited by:** 138 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6753735

## Opinion text

Per Curiam.
This is an action in mandamus originating in this court. In this action, relator seeks an order compelling the respondent judge to enter summary judgment in his behalf.
Relator, as owner and publisher of the Toledo Monitor, was joined as a defendant with the Monitor in an action for libel.
Relator filed a motion for summary judgment on his own behalf. After a hearing thereon, respondent trial judge denied the motion for summary judgment. He now contends that the judge had a mandatory duty to enter summary judgment in his favor.
Relator contends that he has no appeal from the denial of the summary judgment, and that he will be irreparably injured because he will have to come to Toledo from New York for the trial in the libel action.
An order denying a motion for summary judgment is not a final appealable order. See Priester v. State Foundry Co., 172 Ohio St. 28 . Such order is similar to the overruling of a demurrer, which is not a final appealable order. Schindler v. Standard Oil Co., 165 Ohio St. 76 .
*24 Mandamus cannot be used as a substitute for appeal or create an appeal from an order which is not a final order, which relator seeks to do in this action. 35 Ohio Jurisprudence 2d 377, Mandamus, Section 100.
Writ denied.
Taft, C. J., Zimmerman, Matthias, O’Neill, Herbert, Schneider and Brown, JJ., concur.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6753735. Public record. Not legal advice.