
    JUDGMENTS AND DECREES.
    [Cuyahoga (8th) Circuit Court,
    May 22, 1912.]
    Winch, Marvin and Niman, JJ.
    C. E. Howard v. J. Koblitz & Company.
    Justice Judgment Appealed and Case Dismissed for Want of Prosecution no Bar to Another Action.
    A judgment of a justice of the peace appealed to the common pleas court where the case is subsequently dismissed for want of prosecution is no bar to a subsequent action upon the same cause of action or a part thereof.
    Error.
    
      J. H. Saltsman, for plaintiff in error.
    
      F. C. Scott, for defendant in error.
   NIMAN, J.

C, E. Howard brough suit against J. Koblitz & Co. in, the court of common pleas to recover damages of said defendants for the alleged conversion of certain wooden pulleys. The defendants filed an answer to the petition, in the second defense of which was set forth a prior recovery upon the same cause of action by the plaintiff against the defendants. The defendants in said second defense alleged, “that in the action before one John V. Grinley, then a justice of the peace in and for Cleveland township in said county and state, for the same cause of action, alleged in the petition in this case, said plaintiff C. E. Howard, recovered a judgment against these defendants.”

A reply was filed to this answer in the following terms:

“Now comes the plaintiff, and for his reply to the answer of the defendant, says: that an action was brought before Justice Ginley for part of the cause of action alleged in this cause, but further says that same was appealed to the court of common pleas and dismissed for want of prosecution.”

A motion for judgment upon the pleadings was made by the defendants and granted by the trial court. This proceeding in error is prosecuted to reverse the judgment so rendered in favor of the defendants below on the pleadings.

As the pleadings stood when, the motion was heard, it was admitted that the plaintiff had recovered a judgment in the justice court upon a part, at least, of the same cause of action set forth in the petition; that this judgment has been appealed from the court of common pleas and that the cause so appealed had been dismissed for want of prosecution.

The question to be determined here, then is whether the plaintiff in this action is barred from maintaining the same by reason of the recovery in the justice court of a judgment on the same cause of action, which had been appealed from and the appeal dismissed without trial upon the merits.

The precise question involved here was passed upon by this court March 24, 1911, in the ease of Artino v. Leparo, not reported, where, on a similar state of facts, it was held that the plaintiff was not barred from maintaining another action on the claim involved in the former action.

Adhering to the ruling in that ease, We hold that the court of common pleas erred in granting the motion for judgment on the pleadings, and the judgment of the court of common pleas is therefore reversed and remanded for further proceedings according to law.

Winch and Marvin, JJ., concur.  