
    Piesekar v. Eschuk.
    (Decided November 14, 1927.)
    
      Mr. Charles Lefkovits, for plaintiff in error.
    
      Mr. M. M. Lucak, Jr., for defendant in error.
   Sullivan, P. J.

This cause comes into this court on error from the municipal court of Cleveland, and the question of error •which is determinative of the case arises in the following manner:

The plaintiff below, William Eschuk, sued for damages to his automobile, and alleged as negligence that the defendant, Albert Piesekar, carelessly and recklessly operated his automobile, to which pleading there was a statement of defense denying negligence, and by way of cross-petition defendant claimed damages against plaintiff on the ground that plaintiff was going at a high and excessive rate of speed, by reason whereof defendant’s automobile was damaged, for which he sues.

It appears by the record that, when the plaintiff rested his case, a motion was made for judgment for the defendant, which was overruled by the court. Other witnesses were then called for plaintiff, and subsequently the court permitted plaintiff to dismiss his case without prejudice, and exception was taken thereto by defendant, and thereupon defendant proceeded with his cross-statement of claim; and it appears by the record that before actual judgment was pronounced on the cross-statement of claim the defendant made a motion to dismiss the same, which was overruled by the court, after discussing the question of contributory negligence and intimating what the judgment might be, but did not pronounce judgment, as before noted.

Thus the question is whether the court committed error in not giving the defendant the right to dismiss his cross-statement of claim before judgment, especially since, after a similar request by plaintiff’s attorney, at the conclusion of his case, the court had allowed the dismissal of the statement of claim.

It is our unanimous judgment that this was error prejudicial to the defendant below. In the case of Wiswell v. First Congregational Church of Cincinnati, 14 Ohio St., 31, the syllabus reads:

“A plaintiff, after an answer amounting to a counterclaim has been filed, cannot dismiss the action.”

While the action in this case was not dismissed, the claim of the plaintiff was dismissed without prejudice ; but, the court having allowed the defendant to proceed on his cross-statement of claim, we think this relieved the situation of any prejudicial error. In the case of Brinkerhoff, Trustee, v. Smith, 57 Ohio St., 610, the court used the following language:

“Doubtless the general rule is that the plaintiff in an action may dismiss it, and those defendants who have not set forth their claims, by an answer in the nature of a cross-petition, will not be heard to complain.”

Again, as to the right of the defendant below to dismiss his cross-statement of claim before judgment, we cite the case of Schram v. City of Cincinnati, 14 N. P. N. S., 109, 31 O. D., 579, which holds as follows:

“ A motion to dismiss a cause without prejudice is within time, if made after the court has intimated that he is disposed to grant the motion of the defendant for an instructed verdict, but before the motion to instruct had been actually granted for a decision announced.”

In accordance with these authorities we hold that the court below committed error, and the judgment below is hereby reversed, and the cause remanded for further proceedings according to law.

Judgment reversed and cause remanded.

Vickery and Levine, JJ., concur.  