
    CURRAN et v CURRAN et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 11311.
    Decided June 15, 1931
    Hyre & Hyre, and W. J. Davis, Cleveland, for Curran et.
    Clarke So Costello, Cleveland, for Cur-ran et.
    MAUCK, PJ, and MIDDLETON, J (4th Dist), and PARR, J, (7th Dist) sitting. '
   MAUCK, PJ.

The appellant’s claim here is that the action cannot be terminated without the consent of all the parties. This position is unsound. When he conveyed away his rights in the real estate he lost his right to partition. He says further that the deed was fraudulently obtained from him. This question he might have litigated, not on motion; but by a supplemental action, reciting the deed that stood in the way of his further proceding and praying for its cancellation. He did not see fit to file such supplemental petition. He is now remitted to such rights as he may have in a new action to set aside the deed he seeks to at-, tack by • resisting the motion to dismiss. This court does not find that there was or was not fraud in securing the deed. It only sustains the motion to terminate and dismiss the action. Costs in the Common Pleas are taxed to Walter Curran. Costs in this court are taxed to appellant. Motion sustained.

MIDDLETON and PARR, JJ, concur.  