Appealing An Order Determining Priority of Liens

Queen City S. & L. Co. v. Foley (1960), 170 Ohio St. 383, 165 N.E.2d 633 is the only case from the Ohio Supreme Court that addresses the appealability of an order determining priority of liens.

This case was decided prior to the current version of R.C. 2505.02. the court states:

"We hold without hesitation that the judgment of the Court of Common Pleas in this mortgage foreclosure action determining that the mortgage constituted the first and best lien upon the subject real estate was an order from which an appeal could have been perfected." Id. at 387.

The posture of that case at the time the appeal was taken is different than the present case, however, and the high court clearly stated that its holding was applicable to the mortgage foreclosure action before it.

In Queen City, the trial court, on February 24, 1958, decided priority of liens (holding that Queen City's lien was first) and ordered foreclosure and sale of the property.

The court held that this was a final appealable order.

Subsequently, a lumber company (one of the named defendants to the foreclosure suit who had not yet made an appearance) filed, with leave of the trial court, an answer to the complaint and a "cross-petition" for payment of its lien on the foreclosed property.

On July 10, 1958, the court granted the cross-petition, held the landowners liable to the lumber company for the amount of its lien, and found that the lumber company's lien is second in priority to the Queen City lien. the lumber company appealed from the July 10 judgment that found its lien junior to Queen City's.

The Supreme Court of Ohio stated that it was too late for the lumber company to challenge the issue of priority of liens since that was decided on February 24 and should have been appealed at that time.