
    No. 297
    SCHRAMM v. KINSNER & SON CO
    Ohio Appeals, 8th Dist., Cuyahoga County
    No. 4687.
    Decided Jan. 24, 1924
    941. PRACTICE AND PROCEDURE — Error for court to refuse dismissal without prejudice before final submission of the case.
    Attorneys — W. W. Dawson, for Schramm. Mills, Knight & Miller, for J. Kinsner & Sons 'Co.; all of Cleveland.
   •PER CURIAM.

Epitomized Opinion

Published Only in Ohio Law Abstract

In this case, the record in the trial court disclosed that the judge asked if there was any further testimony on either side. Both sides answered no. The court then said, “There seems to be nothing further for the court to do but render judgment for the defendant, and 1 will render judgment accordingly.” At this point the attorney for Schramm said: “I want to dismiss this case, your Honor, without prejudice.” This permission was refused, and the court rendered judgment for the Company. The. court’s refusal to allow dismissal of the case without prejudice is assigned as error. Bn reversing the judgment, the Court of Appeals held:

1. Under 11586 GC. an action may be dismissed without prejudice to a future action by the plaintiff, before its final submission to the jury or to the court, when the trial is by the court. By 11447-8 GC. a party may submit or argue the case to the jury. From this it may be inferred that before a case is submitted either to the court or jury, a party has the right to argue a case or to waive argument. The cause never had been submitted and the counsel for the plaintiff was in his rights in asking the court to dismiss it without prejudice before its submission, and the court in refusing to dismiss committed error, and for that error judgment will be reversed.  