peal, and the appeal be perfected, the officer, on receiving the certificate of the justice of that fact, shall restore the property. [38 v. 34, 2 10; S. & C. 255.]

TITLE IV.

ERROR, MANDAMUS, AND QUO WARRANTO.

CHAPTER I.

JURISDICTION AND PROCEDURE IN ERROR.

2 6707. What is a final order. An order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right made in a special proceeding, or upon a summary application in an action after judgment, is a final order which may be vacated, modified, or reversed, as provided in this title. [51 v. 57, ? 512.]

Allowance to widow, order overruling final, 46 O. S. 89.

Final order. Alimony. An order for alimony pendente lite is a final order, 17 O. S. 563; 38 O. S. 370, 558.

Appeal. Dismissal of appeal is, 10 O. S. 623.

Arrest. And overruling motion to discharge from arrest, 8 Rec. 428.

Attachment. And an order discharging an attachment, 5 O. S. 42; 9 Id. 388; 41 Id. 271; and order of justice overruling motion to discharge attachment, 42 O. S. 102; 46 O. S. 52.

Contempt. Commitment for contempt is, 2 W. L. G. 193, and Conditional order to assign a land certificate, 1 O. 372.

Costs. But an order for payment of costs pending case is not, 23 O. S. 626; and dismissal for want of surety for costs is not for appeal, 2 W. L. M. 600.

Counter-claim. Nor finding and order as to counter-claim, 2

H. 131.

Cross-petition. Dismissal of cross-petition is, 35 O. S. 307. Default judgment. Order setting aside default judgment is,

2 H. 178.

Definition of final order, 13 0. 408; 1 O. S. 511; 11 Bull 105; 12 Id. 20, 23.

Demurrer. Ruling on demurrer is not a final order, 6 O. S. 199. Dismissal without prejudice is not under justice's code, 31 O. S. 463, nor dismissal for want of surety for costs, for appeal, 2 W. L. M. 600; dismissal of appeal is, 10 O. S. 623, and order vacating dismissal is, 12 O. S. 136.

Forcible entry, etc. Judgment of justice in forcible entry and detainer is, 10 O. S. 318; but the refusal of the court of common pleas to allow a petition in error in such proceeding is not reviewable, 42 O. S. 249.

Homestead. Allowance of homestead is a final order, 34 O. S. 42. Injunction. Order dissolving injunction is not for error, 1 C. S. C. R. 255. Order of common pleas is, 45 O. S. 631; 3 C. C. R. 455. Interlocutory decree. Distinction between interlocutory and final decree, 13 O. 408; 1 O. S. 511.

136.

Judgment. Order vacating judgment is a final order, 12 O. S. Mandamus. Refusal by circuit court to allow peremptory mandamus after a hearing upon issue joined is, 43 O. S. 457.

Master's report. And order confirming master's report, 1 O. S. 511, but not an order referring case to master, 11 Bull 105.

Money. Order appropriating money between different judgment creditors is, 3 O. 135.

New trial. Order for new trial is not, 23 O. S. 601; but granting a new trial on petition under 5309 is, 6 O. S. 221.

439.

Partnership. Decree on settlement of partnership is, 26 O. S.

Receiver. Order appointing a receiver is not final for appeal, 10 O. S. 623; but proceedings for appointment and removal of receivers affecting substantial rights are reviewable on error, 31 O. S. 1; 2 C. C. R. 518; 46 O. S.

Referee. Refusal to confirm referee's report is not a final order, 2 Clev. R. 185.

Removal of cause. An order for removal of a cause to federal court is, 20 O. S. 175, and an order of common pleas in proceedings to contest removal of county seat is, 19 O. S. 189.

Reversal of judgment. When the common pleas reverses a judgment of a justice of the peace or probate court and retains the case for trial, the judgment of reversal is not a final order, 12 O. 216; 39 O. S. 170; contra, where the judgment of the common pleas or superior court is reversed and the cause remanded for further proceedings. Error will lie to reverse the judgment of reversal while the cause is still pending in the court to which it has been so remanded, 17 O. S. 183; 21 Ŏ. S. 620; see 22 Id. 118; but a judgment of the district court reversing the judgment of the common pleas with costs, and remanding the cause to the common pleas for execution, is not a final order, 42 O. S. 445. Since the act of April 18, 1883 (80 v. 169), the supreme court has had no power to reverse a judgment of the district court reversing a judgment of the common pleas and remanding the cause for a new trial on the merits, 44 O. S. 438. This act was repealed and supplied by the amendment of February 7, 1885 (82 v. 36), and the latter repealed and supplied by the amendment of May 4, 1885 (82 v. 230).

Sale. An order confirming a sale is a final order, 1 O. S. 511, and an order defeating a sale, 35 O. S. 430, and a decree for sale on mortgage and finding amount due, 7 O. (Pt. 2) 48.

Second trial. Allowance of second trial is a final order, 25 O. S. 29.

Striking case from docket is a final order for error, but not for appeal, 7 O. S. 233; striking out part of answer is not, 6 O. S.

199.

Taxes. Order of common pleas in application to redeem land sold for taxes is, 3 O. 277; appeal did not lie in such case, Id. 301.

2 6708. Jurisdiction of common pleas in error. A judgment rendered or final order made by a probate

court, justice of the peace, or any other tribunal, board, or officer exercising judicial functions, and inferior in jurisdiction to the court of common pleas, may be reversed, vacated, or modified by the court of common pleas. [51 v. 57, 2 511; S. & C. 1099.]

Error lies from a judgment of the common pleas reversing a judgment of conviction in mayor's court, 40 Ó. S. 253. A judg ment of a justice of the peace in forcible entry and detainer is judgment within the meaning of this section, 10 O. S. 318. The refusal of the common pleas to allow a petition in error, in such proceeding, is not reviewable in the district court on a petition in error, 42 O. S. 249. An order of a justice overruling a motion to discharge an attachment is reviewable on error, 42 O. S. 102.

? 6709. Jurisdiction of circuit court in error. A judgment rendered, or final order made, by the common pleas court, may be reversed, vacated, or modified by the circuit court, for errors appearing on the record all errors assigned in the petition in error shall be passed upon by the court, and in every case where a judgment or order is reversed and remanded for a new trial or hearing, the circuit court shall, in its mandate to the court below, state the error or errors found in the record upon which the judgment of reversal is based. [82 v. 36; 51 v. 57, 513; S. & C. 1100.]

Error did not lie from the district court in forcible entry and detainer, 42 O. S. 249; it laid from the district court to the common pleas in election contests, 19 O. S. 189. The judgments of the Superior Court of Cincinnati were formerly reviewable by the district court, 75 v. 804, though not those of general term, 34 O. S. 289; but they were a short time prior to April, 1880, 5 Bull 413. Judgments or final orders of the superior court at general term are now reviewable only by the supreme court, 22 503, 6710. Judgments or final orders of the superior court at special term are reviewable by that court at general term for errors appearing in the proceedings at special terms or by exceptions taken in accordance with 22 5297-5304; see 499a; and a judge of such court sitting in special term may reserve and adjourn for decision in general term any question of law or fact arising in any case upon the record or upon evidence in writing; and judg ments, etc., may be entered in reserved cases in general term, 2503. The proceedings to obtain such review are the same as those provided by these sections (6707-6740) on petition in error, except that it is not necessary to file with the petition a transcript of the proceedings, but the petition in error is heard on the original files, pleadings, and proceedings; and the superior court at general term has the power to render such judgment as should have been rendered at special term, or remand the cause to the special term for judgment, and upon such judgment execution may issue as upon original judgments, ? 499a.

2 6710. Jurisdiction of supreme court in error. A

judgment rendered, or final order made, by the circuit court, any court of common pleas, probate court, or the superior court of any city or county, may be reversed, vacated or modified by the supreme court, on petition in error, for errors appearing on the record; but no petition in error, in such cases, except as to the judgment or final order of the circuit court, shall be filed, without leave of the supreme court, or a judge thereof, and the supreme court shall not, in any civil cause or proceeding, except when its jurisdiction is original, be required to determine as to the weight of the evidence; and on application of any party, excepting to a ruling or decision of the circuit court during the trial, or on motion for a new trial, such court shall find from the evidence, and state on the record, the facts upon which the alleged error arises, or which may be material in determining whether error has intervened or not.

Circuit court not required to make finding of facts, 20 Bul 390; 46 O. S.. Review of evidence by supreme court, 45 O. S. 1; 46 O. S. 52.

Error lay to the district court from the supreme court in election contests, 15 O. S. 573; from the supreme court to the common pleas in cases appealed from county commissioners, 43 O. S. 210; from the supreme court to the probate court in proceedings to appropriate property, 5 O. S. 276; not from common pleas in such cases, 39 O. S. 170; lies from the supreme court to general term superior court, 503. If relief can be had in the district court, it must be sought there, unless there is special reason for coming to the supreme court, 3 O. S. 509; 34 O. S. 163. Exception must be taken during the trial— hearing of motion to dismiss petition in error-order of dismissal not reviewable, 44 O. S. 525. 41 O. S. 438 construes the amendment, 80 v. 169, 2 6707, notes.

2 6711. The record in the supreme court must be printed. When a petition in error is filed in the supreme court, so much of the record to be reviewed as will show the error complained of shall be printed, and ten of the printed copies thereof filed with the papers, which printing the plaintiff in error may have done, or he may deposit with the clerk sufficient money to pay the costs thereof; and if he fail for sixty days after filing the petition, to file such printed copies or make such deposit, the petition in error shall be dismissed, unless the court, on good cause shown, extend the time or dispense with such printing; and the fair expense of such printing shall be taxed as part of the costs. The clerk shall deliver to the court, at cach monthly call of the docket, a list of cases in default under this section,

and the court shall call the same and make disposition thereof as herein provided. [80 v. 169; 75 v. 804, 2 5.]

Dismissal of petition in error for want of printed record held a bar to a second petition in error, 36 O. S. 93. The provision of this section as to the time within which records must be printed has no application to cases reserved from the district court, 38 O. S. 373; see rule 5, supreme court, 35 O. S. 396.

? 6712. When supreme court shall assess penalty. When, in any such case, the judgment or final order of a circuit court is affirmed, there shall be taxed, as part of the costs in the case, a reasonable fee, to be fixed by the court, not less than twenty-five nor more than three hundred dollars, to the counsel of the defendant; and the court shall adjudge to the defendant damages in such sum as may be reasonable, not exceeding five hundred dollars, unless the judgment or final order of the circuit court directs the payment of money, and execution thereof was stayed in such proceeding in error in the supreme court, when, in lieu of such penalty, it shall bear additional interest, at a rate not exceeding five per centum per annum, for the time for which it was stayed, to be ascertained and awarded by the court (1); but if the supreme court certify in its judgment that there was reasonable cause for the proceeding in error, neither such fee, nor additional interest, nor penalty, shall be taxed, adjudged, or awarded (2). [82 v. 37; 75 v. 804, 2 6.]

1. 2 W. L. M. 272, 418. Part payment relieves pro tanto, 8 O. 60; 19 O. 26; has no preference as lien, 14 O. S. 349. 2. 17 O. 605; 19 0.26.

26713. Petition and summons in error. The proceedings to obtain such reversal, vacation, or modification shall be by petition in error, filed in a court having power to make the reversal, vacation, or modification, and setting forth the errors complained of; thereupon a summons shall issue and be served, or publication made, as in the commencement of an action, and a service on the attorney of record in the original case shall be sufficient; the summons shall contain a statement that a petition in error has been filed in the case; and if issued in vacation, it shall be returnable on or before the first day of the term of the court, and if issued in term time, it shall be returnable on a day therein named; and if the last publication, or service of the summons, be made ten