
    J. J. Ferrall v. Bluffton Lodge, No. 371, I. O. O. F.
    1. A judgment of a mayor’s court dismissing an action without prejudice on the ground that the testimony does not sustain the action, is unauthorized and erroneous.
    2. A judgment of dismissal without prejudice is not a final judgment from which an appeal may be taken under section 111 of the justice's act (S. & O. 788.)
    Motion for leave to file petition in error to reverse the judgment of the District Court of Allen county.
    The action was brought before the mayor of Bluffton on a book account that had been assigned to the plaintiff, by J. W. Townsend, who was the trustee in bankruptcy of the-firm of Long & Waltz.
    The plaintiff, on the trial, introduced testimony tending-to maintain the action in his behalf.
    Whereupon the defendant filed a motion to dismiss the action on the grounds: “ 1. There is no evidence before this court, that J. M. Townsend, trustee in bankruptcy, was appointed by any court of authority, or that he was appointed by any court.”
    “ 2. That it does not appear that as trustee he had a title-to, or right and authority to sell the books of Long & Waltz.”
    Which motion was sustained by the mayor, and the case-was “ dismissed without prejudice to a new trial.”
    A bill of exceptions was taken by the plaintiff, setting out all the testimony taken in the case.
    The court of common pleas, on error, affirmed the judgment of the mayor, and this judgment of the court of common pleas, was, on error, affirmed by the district court.
    By this proceeding the reversal of the judgments of thedistriet court, court of common pleas, and mayor’s court is-sought.
    
      Hughs Sg Robb, for the motion.
    
      Owens, Ballard $ Mead, contra.
   Gimmore, J.

The judgments of the several courts below must be reversed.

The testimony introduced before the mayor by the plaintiff, on the trial, at least tended to prove that he was entitled to recover on the account sued upon. If the defendant had no testimony to offer, the plaintiff had made a case-upon which he was clearly entitled to have had a final judgment rendered for or against him on the merits of his case-. Erom such a judgment he could have appealed, under section 111 of the justice’s act (S. & 0. 788), which reads as-follows : “ In all cases not otherwise specially provided for by law, either party may appeal from the final judgment off any justice of the peace to the court of common pleas of' the county where the judgment was rendered.”

It is only final judgments that can be appealed from under this section. In this respect it is different from the act of 1824, which provided for appeals from any judgment of a justice of the peace, including a judgment of non-suit. Brachenridge v. Husted, Wright, 70.

Section 104 of the justice’s act (S. &. C. 787) provides for the cases otherwise specially provided for, and in which actions can be dismissed without prejudice. They are as follows: 1. Where the plaintiff voluntarily dismisses the action before it is finally submitted. 2. When he fails to appear at the time specified in the summons, or upon adjournment, or within one hour thereafter. 3. When it is-objected at the trial, and appears by the evidence that the-action is brought in the wrong township.

No appeal lies from a judgment of dismissal without prejudice on either of these grounds. Eaton v. French, 23 Ohio St. 561. Neither would an appeal lie from a judgment of dismissal without prejudice, on any other grounds, because (1) such a judgment would be unauthorized, and (2)-it would not be a final judgment within the meaning of section 111, above quoted. The provisions of sections 104 and 111 are also applicable to actions brought before mayors.

The judgment of dismissal, on either of the grounds-stated in the motion, was unauthorized, and, therefore, erroneous; and inasmuch as it deprived the plaintiff of a right of appeal under section 111, the judgment was prejudicial to his rights.

The judgments of the district court, court of common pleas, and mayor’s court, respectively, are reversed, and the-cause remanded to the court of common pleas for such further proceedings as may be authorized by law.

Judgment accordingly.  