
    SAVING OF RIGHTS IN CASE OF A REVERSAL.
    Circuit Court of Franklin County.
    Charles C. Higgins v. The Turney & Jones Company et al.
    Decided, July 30, 1912.
    The period of one year within which a new action may be brought inures to a plaintiff whose judgment below has been reversed, and also to a plaintiff who failed in the trial court otherwise than on the merits.
    Dustin, J.; Allread, J., and Ferneding, J., concur.
   The point suggested by counsel for plaintiff in error that his action is within time under Section 11233, General Code, because brought within a year after a dismissal'‘ otherwise than upon its merits” by the circuit court, on appeal, is not, in our.view, well taken.

The case of Cummings v. Dougherty, 31 Law Bulletin, 140, does not, we think, state the law.

If a plaintiff. wins in the trial court, but the judgment is reversed in the upper court, he has a year after reversal in which to bring a new action; or, if he fails in the trial court otherwise than upon the merits, he has the same right.

In the case at bar Jones failed in the trial court upon the merits, viz., upon a demurrer to the facts. By taking an appeal he took the chances of losing by limitation of time. The dismissal of the appeal and the affirmance on error did not, we think, work an extension.

Judgment affirmed.  