
    PASSIG v OSSING et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 14578.
    Decided June 24, 1935
    
      Paynter & Snow, Cleveland, and Edwin E. Miller, Cleveland, for plaintiff in error.
    Arthur P. Gustafson, Cleveland, for defendant in error.
    LEMERT, PJ, MONTGOMERY and SHERICK, JJ, (5th Dist) sitting by designation.
   OPINION

By LEMERT, PJ.

The principal ground relied upon by defendants in error is that no final order of Common Pleas Court existed since the action was dismissed without prejudice. The record shows that the court below dismissed the action at its own instance without prejudice. This same contention was raised in the case of Nyitray v McAloman, 27 O.C.A. 545. 'That action was dismissed without prejudice and the court refused to dismiss the petition in error for that reason. In the case of Egan v New York, Chicago & St. Louis Railroad Co., 5 C.C. (n.s.) 482, the court used the following language:

“It has been intimated that perhaps this action of the court may not be reviewable by proceedings in error, but we are of the opinion that this order of dismissing the action and adjudging the costs against plaintiff, although the action was dismissed without prejudice, was such a final order under the statute upon the subject of proceedings in error as is reviewable on errors.”

We therefore believe that this contention of the defendants in error is not well taken.

From an examination of the authorities submitted by both sides in this case, we are of the opinion that the motion to dismiss for want of jurisdiction should be and the same is hereby overruled.

Now, proceeding to the further consideration of this case there remains only one issue to be determined and that is whether or not the second amended petition states a cause of action. We have carefully read the second cause of action in second amended petition and when the second cause of action is carefully considered together with the first cause of action we are of the opinion that the second amended petition states a cause of action. Therefore we find that error intervened in this case and that the court below committed error when it dismissed plaintiff’s second amended petition and rendered final judgment against him for costs.

It therefore follows that this cause is hereby reversed and remanded to the Common Pleas Court for further proceedings according to law. Exceptions may be noted.

MONTGOMERY and SHERICK, JJ, concur.  