COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72758 H & D STEEL SERVICE INC. : : JOURNAL ENTRY PLAINTIFF-APPELLANT : : AND v. : : OPINION WESTON, HURD, FALLON, : PAISLEY & HOWLEY : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-284135. JUDGMENT: REVERSED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: Frank R. DeSantis, Esq. Kaufman & Cumberland Co., L.P.A. 1500 Republic Building 25 Prospect Avenue, West Cleveland, OH 44115-1000 For Defendant-Appellee: James F. Sweeney, Esq. Timothy T. Brick, Esq. Gallagher, Sharp, Fulton & Norman 7th Floor, Bulkley Building 1501 Euclid Avenue Cleveland, OH 44115 -2- TIMOTHY E. McMONAGLE, P.J.: Plaintiff-appellant, H & D Steel Service, Inc. ( H & D Steel ), appeals the decision of the Cuyahoga County Common Pleas Court finding it in contempt of court for failure to provide documents to defendants-appellees, Weston, Hurd, Fallon, Paisley & Howley and an attorney in that firm, Jason Blackford (collectively referred to as Weston Hurd ). Finding the requested documents to be privileged and therefore exempt from production, we reverse the finding of contempt and vacate the penalty imposed. The record reflects that H & D Steel engaged the legal services of Weston Hurd to protect H & D Steel's rights as a creditor in its dealing with one of its customers, Transue & Williams Stamping Company ( T & W ). In particular, H & D Steel had brokered steel to T & W on credit for which H & D Steel sought to secure the debt in the event T & W defaulted. Defendant- appellee, Jason Blackford, an attorney at Weston Hurd, was the attorney assigned to prepare the legal documents necessary to secure the T & W debt and to otherwise advise H & D Steel in its dealings with T & W. T & W eventually filed for protection under Chapter 11 of the Bankruptcy Code. At the time of the filing, T & W owed H & D Steel approximately 1.6 million dollars. In an adversary proceeding filed shortly thereafter, T & W alleged that H & D Steel's security interests were defective and the debt should otherwise be set aside on theories of equitable subordination and claims of insider preference. H & D Steel subsequently discharged Weston Hurd as -3- counsel and retained the services of Benesch, Friedlander, Coplan and Aronoff (BFCA) who eventually compromised the debt and negotiated a settlement between H & D Steel and T & W for $205,000.00. H & D Steel then filed the within legal malpractice action alleging that Weston Hurd negligently prepared the documents necessary to secure its debt against T & W and otherwise negligently provided legal advice regarding its dealings with T & W. In particular, H & D Steel claims that it was unable to realize the full value of its claim against T & W. Weston Hurd counterclaimed for unpaid legal services. During the course of discovery, Weston Hurd requested documents that H & D Steel determined to be protected by the attorney-client privilege. While BFCA's entire file was sought, it appears that the focus of this appeal surrounds the discoverability of a letter from BFCA to H & D Steel that discussed the underlying settlement between H & D Steel and T & W. This letter purportedly contains BFCA's professional opinion as to the merits of the adversary proceeding, including the strengths and weaknesses of the case, and recommends a course of action. When H & D Steel refused to produce this document after the trial court granted Weston Hurd's motion to compel, H & D Steel was found in contempt of court and a monetary fine was imposed. H & D Steel now appeals and assigns the following error for our review: THE TRIAL COURT ERRED IN FINDING PLAINTIFF- APPELLANT IN CIVIL CONTEMPT FOR REFUSING TO -4- PROVIDE ANSWERS AND DOCUMENTS IN RESPONSE TO CERTAIN WRITTEN DISCOVERY PROPOUNDED BY DEFENDANTS-APPELLEES WESTON, HURD, FALLON, PAISLEY & HOWLEY AND JASON C. BLACKFORD BECAUSE THE INFORMATION SOUGHT BY DEFENDANTS- APPELLEES' DISCOVERY IS PROTECTED PURSUANT TO THE ATTORNEY-CLIENT PRIVILEGE. In its sole assignment of error, H & D Steel contends that it was error for the trial court to have found it to be in contempt of court when it failed to produce documents protected by the attorney-client privilege. Weston Hurd maintains that the privilege was implicitly waived when H & D Steel filed suit and upon a showing that the requested information is vital to its defense. As a threshold matter, we must address the jurisdictional argument raised by Weston Hurd in its motions to dismiss this appeal on the basis that the order appealed from is not a final appealable order. Specifically, Weston Hurd argues that the order finding H & D Steel in contempt of court for failing to provide documents is an interlocutory discovery order not capable of immediate review. We disagree. Where an otherwise non-appealable interlocutory order results in a judgment of contempt, including a fine or imprisonment, such a judgment is a final and appealable order and presents to the appellate court for review the propriety of the interlocutory order which is the underlying basis for the contempt adjudication. Smith v. Bd. of Trustees (1979), 60 Ohio St.2d 13, paragraph one of the syllabus; see, also, McCarty v. Kimmel (1989), 62 Ohio App.3d 775, 781; Cooper v. Cooper (1984), 14 Ohio App.3d 327, 328-329; State v. -5- Spencer (May 7, 1998), Cuyahoga App. No. 72495, unreported at 4. Here, the finding of contempt was accompanied by the imposition of a monetary penalty. Weston Hurd, nonetheless, argues that the penalty was nominal and imposed at the request of attorneys for H & D Steel in an attempt to make an otherwise non- appealable discovery order a final order. Contrary to the opinion expressed by the dissent, the instant case is not directly analogous to Walters v. The Enrichment Ctr. of Wishing Well, Inc. (1997), 78 Ohio St.3d 118. Walters involved an appeal of a denial of a protective order and not, as in this case, an appeal of an order of contempt. The dissent ignores this distinction and instead focuses on the nature of the order underlying the finding of, and sanction for, contempt. While Smith addressed the necessity of reviewing the underlying order, the review was for the purpose of determining the propriety of the contempt order itself, not to determine whether the underlying order is immediately reviewable. Because we find nothing irregular about counsel's conduct that would affect our ability to review the contempt order at issue, we deny Weston Hurd's request to dismiss the instant appeal and turn now to the merits of the appeal. Privilege is the cornerstone upon which the attorney-client relationship is founded. The purpose of the attorney-client privilege is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interest in the observance of law and administration of justice. Upjohn Co. v. United States (1981), 449 U.S. 383, 389. It bestows -6- upon a client the privilege to refuse to disclose, and to prevent others from disclosing, confidential communications made between the attorney and client in the course of seeking or rendering legal advice. Frank W. Schaefer, Inc. v. C. Garfield Mitchell Agency, Inc.(1992), 82 Ohio App.3d 322, 329. While this privilege is not absolute, it is to remain inviolate unless it is clearly waived. Communications made by a client to his attorney, with a view to professional advice or assistance, are privileged; and courts will not require nor permit them to be divulged by the attorney, without the consent of his client, whose privilege it is. King v. Barrett (1860), 11 Ohio St. 261, paragraph one of the syllabus; see, also, State v. Shipley (1994), 94 Ohio App.3d 771, 775. The privilege belongs to the client, and the only materials protected are those which involve communications with the client's attorney. Frank W. Schaefer, supra at 329. As such, only the client can waive the attorney-client privilege. State v. Today's Bookstore, Inc. (1993), 86 Ohio App.3d 810, 818. Nonetheless, in certain limited situations, waiver can be implied by the conduct of the one asserting the privilege. While the doctrine of implied waiver as it pertains to the discoverability of purportedly privileged documents has received little attention by the courts of this state, the federal courts have employed some version of one of three general approaches in determining whether the privilege has been waived. See Frank W. Schaefer, 82 Ohio App.3d at 329-330; see, also, Frontier Refining, Inc. v. Gorman-Rupp Co., Inc. (Feb. 13, 1998), Tenth Cir. No. 96- -7- 8014, unreported at 2; cf. Greater Newburyport Clamshell Alliance v. Public Serv. Co. (C.A.1, 1988), 838 F.2d 13, 17. The first of these approaches is the automatic waiver rule, which provides that the litigant automatically waives the privilege upon assertion of a claim, counterclaim, or affirmative defense that raises as an issue a matter to which otherwise privileged material is relevant. See Indep. Prod. Corp. v. Loew's Inc. (S.D.N.Y. 1958), 22 F.R.D. 266. Finding application of this approach too rigid and harsh, many courts have rejected its use. See, e.g., Federal Deposit Ins. Corp. v. Wise (D.Colo. 1991), 139 F.R.D. 168, 171; see, also, Remington Arms Co. v. Liberty Mut. Ins. Co. (D.Del. 1992), 142 F.R.D. 408, 414. The second approach provides that the privilege is waived only when the material to be discovered is both relevant to the issues raised and either vital or necessary to the opposing party's defense. Black Panther Party v. Smith (C.A.D.C. 1981), 661 F.2d 1243, 1266-68, vacated and remanded sub nom. Moore v. Black Panther Party(1982), 458 U.S. 1118 (balancing the need for discovery with the importance of the privilege); Hearn v. Rhay (E.D.Wash. 1975), 68 F.R.D. 574, 581 (setting forth a tripartite test in determining relevancy and necessity of the information). Lastly, several courts have concluded that a litigant waives the attorney-client privilege if, and only if, the litigant directly puts the attorney's advice at issue in the litigation. See Rhone-Poulenc Rorer Inc. v. Home Indem. Co. (C.A.3, 1994), 32 F.3d 851, 863-864; cf. Kremer v. Cox (1996), 114 Ohio App.3d 41, 58. -8- It is the tripartite test established by the Hearn court that most courts, including the Second Appellate District of this state, have adopted. See, generally, Zenith Radio Corp. v. United States (C.A.Fed. 1985), 764 F.2d 1577, 1579; Federal Deposit Ins. Corp. v. Wise, 139 F.R.D. at 171; see, also, Frank W. Schaefer, 82 Ohio App.3d at 331. Under the Hearn test, each of the following three conditions must exist in order to find the privilege impliedly waived: (1) assertion of the privilege is the result of some affirmative act, such as filing suit, by the asserting party; (2) through this affirmative act, the asserting party put the protected information at issue by making it relevant to the case; and (3) application of the privilege would have denied the opposing party access to information vital to his defense. Hearn at 581. H & D Steel contends that none of these conditions is satisfied. In particular, it argues that its filing of a legal malpractice action did not put the assertion of the privilege at issue and that privileged communications with its successor counsel, BFCA, are not relevant to this case. Lastly, it argues that the information sought is not vital to Weston Hurd's case. Weston Hurd, on the other hand, maintains that all three conditions are satisfied. Specifically, H & D Steel instituted a legal malpractice action that resulted in placing the privileged documents generated by BFCA at issue and that these documents are vital to Weston Hurd's defense. -9- In applying the Hearn test to the facts of this case, it is necessary to understand the nature of the underlying action. In order to establish a cause of action for legal malpractice based on negligent representation,a plaintiff must demonstrate that (1) the attorney owed a duty or obligation to the plaintiff, (2) there was a breach of that duty or obligation and that the attorney failed to conform to the standard required by law, and (3) there is a causal connection between the conduct complained of and the resulting damage or loss. Vahila v. Hall (1997), 77 Ohio St.3d 421, syllabus. Thus, it is incumbent upon H & D Steel to prove, through expert testimony, that but for Weston Hurd's alleged negligence in preparing the documents, H & D Steel would not have suffered the monetary loss it did even in the face of T & W's bankruptcy. See McInnis v. Hyatt Legal Clinics (1984), 10 Ohio St.3d 112, 113; Hirschberger v. Silverman (1992), 80 Ohio App.3d 532, 538; Murphy v. Redeker (Jan. 16, 1997), Cuyahoga App. No. 70868, unreported at 3. Even if we were to concede that the first and second prongs of the Hearntest are arguably satisfied in this case, we fail to see how the requested information is vital to Weston Hurd's defense. Vital information necessarily implies that the information is unavailable from any other source. Frontier Refining, supra at 5; see, also, Greater Newburyport Clamshell Alliance, 838 F.2d at 20. While it claims that the requested information is vital to its understandingof the reasonableness of the settlement, Weston Hurd has not demonstrated that this information could not be obtained -10- from any other source. In fact, at the time Weston Hurd filed its motion to compel, no witnesses had yet been deposed and discovery had only minimally been undertaken.1 Weston Hurd urges this court find the privilege waived as to successor counsel on the basis of Pappas v. Holloway (1990), 114 Wash.2d 198, 787 P.2d 30. In that case, an attorney in the course of litigation was replaced by successor counsel. In the legal malpractice action that followed, the former attorney sought communications between his former clients and successor counsel. Applying Hearn to the facts of that case, the Pappas court found the former attorney to be entitled to the requested information because it was vital to his defense of the legal malpractice action. We find Pappas distinguishable from the instant case. The former attorney in Pappas was discharged while the matter was pending. Successor counsel entered the case in midcourse and took the case to trial, which resulted in an unfavorable judgment and ultimately settled. Thus, whether the former attorney violated the standard of care could not have been determined without resort to the records of successor counsel. 1We note disappointedly that Weston Hurd appended to its appellate brief excerpts of the deposition of H & D Steel president, Raymond Schreiber. This deposition was not before the trial court and cannot be considered by this court on appeal. State v. Ishmail (1989), 54 Ohio St.2d 402. Counsel is also cautioned with respect to certain statements made during oral argument that, likewise, were not part of the record below but were nonetheless introduced. Facts not within the record will not be considered by a reviewing court and references to such may well represent an attempt to obscure an issue that is disingenuous at best. -11- While on their face the cases appear similar, they are not so. It is true that Weston Hurd was discharged during the adversary proceeding, but it is not the adversary proceeding on which the legal malpractice action is based. On the contrary, it is Weston Hurd's involvement prior to this proceeding of which H & D Steel complains. Thus, Weston Hurd's alleged negligence was already complete at the time of the adversary proceeding. BFCA's subsequent involvement as successor counsel did not in any way encroach upon the legal services rendered by Weston Hurd. Thus, the information sought is not vital to Weston Hurd's defense, as was the information sought in Pappas. The instant case is more analogous to Jakobleff v. Cerrato, Sweeney and Cohn (1983), 97 A.D.2d 834, 468 N.Y.S.2d 895, a case distinguished by the Pappas court. In that case, former counsel sought to depose successor counsel in order to prove their claim for contribution. The Jakobleff court held that disclosure of communications between plaintiff and successor counsel were not necessary in order for former counsel to successfully assert a defense. The court reasoned that successor counsel was involved, as in this case, on the question of damages only -- an issue that could only have arisen after the professional responsibilities of former counsel had ended. As such, the privileged communication was unrelated to the alleged malpractice of former counsel, as it is in this case. Id.; see, also, Bennett v. Oot & Assoc. (1994), 616 N.Y.S.2d 163, 166. -12- Weston Hurd alludes to alleged illegal activities that may have been factors in compromising the debt. Such factors, even if true, are either tangential to or remote from the legal issue in this case. Zenith Radio Corp., 764 F.2d at 1580. Consideration of factors that may have contributed to the negotiation of a settlement is not central to the issue of whether Weston Hurd acted in a manner that conformed to the standard of care of a reasonably prudent attorney. See Pippenger v. Gruppe (S.D.Ind. 1994), 883 F.Supp. 1201, 1206. While the information contained in the BFCA document, if obtained, may have affected Weston Hurd's strategy, it bears little relation to its ability to adequately defend the legal malpractice action. In all fairness to Weston Hurd, however, we are well aware that while the duty to mitigate damages rests on the party claiming damages, the burden of proving failure to mitigate falls on Weston Hurd as the alleged breaching party. See Home Indem. Co. v. Lane Powell Moss and Miller (C.A.9, 1995), 43 F.3d 1322. The reasonableness of the settlement then becomes an issue, but only to the extent that the damages suffered are attributable to Weston Hurd's alleged negligence. This information, however, could be obtained from sources other than H & D Steel's attorneys. The plaintiff must prove the reasonableness of the settlement, in all likelihood, through the use of expert testimony. Weston Hurd then has the potential to uncover the operative facts upon which the expert's opinion is based and that would satisfy its burden without invading the sanctity of the attorney-client privilege. -13- We are mindful that a reviewing court will not disturb a trial court's finding of contempt absent an abuse of discretion. State ex rel. Celebrezze v. Gibbs (1991), 60 Ohio St.3d 69, 75; State ex rel. Ventrone v. Birkel (1981), 65 Ohio St.2d 10, 11. An abuse of discretion connotes more than an error of law or judgment; it implies an attitude on the part of the trial court that is unreasonable,arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. We, nonetheless, find that the trial court acted unreasonably and abused its discretion when it found H & D Steel in contempt of court for failing to provide documents protected by the attorney-client privilege when the privilege had not been expressly or implicitly waived. Accordingly, H & D Steel's sole assignment of error is well taken. The judgment of the trial court finding it in contempt of court is hereby reversed and the penalty vacated. -14- This cause is reversed for further proceedings consistent with the opinion herein. It is, therefore, considered that said appellant recover of said appellee its costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATTON, J., CONCURS; ROCCO, J., DISSENTS (WITH SEPARATE DISSENTING OPINION). TIMOTHY E. McMONAGLE PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72758 H & D STEEL SERVICE, INC. : : Plaintiff-appellant : DISSENTING : vs. : OPINION : WESTON, HURD, FALLON, PAISLEY : & HOWLEY : : Defendant-appellee : DATE: JULY 23, 1998 KENNETH A. ROCCO, J. DISSENTING: I respectfully dissent from the majority opinion simply because I believe this court lacks jurisdiction to consider this appeal. In Walters v. The Enrichment Ctr. of Wishing Well, Inc. (1997), 78 Ohio St.3d 118 (decided on April 2, 1997), at the syllabus, the Ohio Supreme Court held [t]he denial of an asserted *** privilege of confidentiality is not a special proceeding for purposes of R.C. 2505.02, but is an interlocutory discovery order and is neither final nor appealable. [Citations.] The facts of Walters are directly analogous to those of this case: The plaintiffs filed an action against the defendants, a day- care center and its director, alleging that defendants made an unsubstantiated report of child abuse against plaintiffs in retaliation for plaintiffs' filing of a complaint with the police department over another matter. -2- During the course of the action, plaintiffs filed a discovery request for copies of documents defendants filed with government agencies pertaining to the allegations of child abuse. Defendants refused to provide the copies, asserting the information was subject to a privilege of confidentiality pursuant to a statute, viz., R.C. 2151.421. Notably, unlike appellant in the case sub judice, defendants at this point moved for a protective order, as required by Civ.R. 26(C) when a claim of privilege is made during discovery. The trial court considered the claim, then denied defendants' motion in part, determining some of the documents were not subject to the privilege. Defendants appealed to this court from the order; although plaintiffs moved for dismissal of the appeal on the basis that it was interlocutory, this court determined the order was a final one and that, therefore, it had jurisdiction. Ultimately, as does the majority opinion in the case sub judice, this court reversed the trial court's decision. Thereafter, this court granted plaintiffs' subsequent motion to certify a conflict to the supreme court on the appealability of the trial court's order. The certified question was quoted in the opinion of Walters as: Whether the denial of an asserted statutory privilege of confidentiality is a special proceeding for purposes of R.C. 2505.02 and therefore a final appealable order. (Emphasis added.) The supreme court answered the query in the negative. -3- The supreme court held that although the trial court's order affected a substantial right, it failed the second portion of the appellate court's jurisdictional statute. In so holding, the court cited Polikoff v. Adam (1993), 67 Ohio St.3d 100, where it stated at the syllabus that an order that is entered in an action recognized at common law or in equity and *** not specially created by statute is not one entered in a special proceeding. (Emphasis supplied.) The supreme court further explained that rulings by a trial court on demands for discovery are simply designed to aidin the final disposition of the litigation in which they are utilized; therefore, they are interlocutory. To clarify the matter, the court declared: The type of order being considered is immaterial ***. [I]t is the underlying action that must be examined ***. In [this case], the underlying action was an ordi- nary civil action *** recognized at common law and hence was not a special proceeding. (Emphasis in original.) As in Walters, this case concerns the trial court's inherent authority, recognized at common law, to impose a sanction for a discovery violation. Cincinnati v. Cincinnati District Council 51 (1973), 35 Ohio St.2d 197. It would seem from the language of the opinions in both Waltersand Polikoff that the fact the trial court imposed this particular sanction for the violation, which is expressly permitted by Civ.R. 37(B)(2)(d), is immaterial since the underlying action is identical. The privilege asserted by appel- lant to justify its refusal to release the information requested by appellees, moreover, is not one protected by a particular statute, -4- as was the case in Walters. Furthermore, appellant requested neither a protective order nor an in camera inspection of the materials sought to be discovered by appellees. Moskowitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638; Peyko v. Frederick (1986), 25 Ohio St.3d 164; McHenry v. General Accident Ins. Co. (1995), 104 Ohio App.3d 350. Clearly, R.C. 2705.02 and 2705.09 provide statutory authority for a judgment of contempt and appellate review thereof; neverthe- less, the trial court did not proceed under the authority of these code sections but rather proceeded under Civ.R. 37(B)(2)(d). The trial court made this plain both in its order granting the motion to compel and by neither conducting a special proceeding pursuant to R.C. 2705.05 prior to the imposition of the contempt order nor imposing any of the penalties set forth in R.C. 2705.05(A)(1) through (3). Cf., Olmsted Twp. v. Riolo (1988), 49 Ohio App.3d 114; Chain Bike Corp. v. Spoke'N Wheel, Inc. (1979), 64 Ohio App.2d 62. Interestingly, although appellate courts seem to have routinely assumed jurisdiction over appeals from contempt citations for discovery-type violations so long as an additional penalty is imposed, the opinions usually fail to consider whether R.C. 2705 formally applies to such an action. See, e.g., McCarty v. Kimmel (1989), 62 Ohio App.3d 775; Pilgrim v. Brown (Nov. 3, 1996), Pickaway App. No. 94CA8, unreported; Cramer v. Greene County Bd. of Ed. (Aug. 12, 1994), Greene App. No. 94CA69, unreported; Kuhn & Co. v. Genslinger (July 8, 1992), Montgomery App. No. 12786, unre- -5- ported; cf., Williams v. Cordle (Feb. 8, 1996), Franklin App. No. 95APF08-978, unreported; Clark v. Clark (Nov. 24, 1993), Scioto App. No. 2116, unreported. The case ordinarily relied upon in these opinions, and thus the one cited by both the majority opinion and appellant to justify their position on the issue of immediate appealability of the trial court's order in this case, viz., Smith v. Chester Township Board of Trustees (1979), 60 Ohio St.2d 13, was based upon facts which indicated the trial court was forced to conduct, in essence, a special proceeding because the appellant/board refused to comply with the statutory requirements necessary to conduct an administra- tiveappeal, arguably, something not known at common law. Thus, it is distinguishable from contempt citations for failure simply to comply with discovery orders. The other cases appellant relies upon in its brief in opposition to the motion to dismiss were all decided well before Walters. In addition, some of the cases that discuss the immediate appealability of a contempt citation when it is imposed as a discovery sanction relied upon Humphry v. Riverside Methodist Hosp. (1986), 22 Ohio St.3d 94. See, e.g., McHenry v. General Accident Ins. Co., supra, at 352-53; Kuhn & Co. v. Genslinger, supra. In Humphry, the supreme court held that a discovery order compelling disclosure of confidential information was a special proceeding and was immediately appealable. Humphry expressly was overruled by the supreme court in Polikoff and Walters. -6- Based upon the most recent Ohio Supreme Court decision on a matter directly analogous to the one which exists in this case, I believe no final order was entered from which this appeal was taken. .