
    APPEAL — ERROR.
    [Franklin (2nd) Circuit Court,
    July 30, 1912.]
    Dustin, Allread and Ferneding, JJ.
    Charles C. Higgins v. Turney & Jones, Co., et al.
    1. Dismissal on Appeal and Affirmance on Error to Judgment on Demurrer to the Facts not Ground for Extension of Time for New Action.
    Dismissal on appeal and affirmance on error in the court of appeals of an action that failed in the common pleas upon the merits — demurrer to the facts — does not work an extension of a years time within which to institute a new action under Sec. 11233 G. C.
   DUSTIN, J.

The point suggested by counsel for plaintiff in error that his action is within time under Sec. 11233 G. C., because brought within a year after a dismissal “otherwise than upon its merits” by the circuit court, on appeal, is not, in our view, well taken.

The case of Cummings v. Dougherty, 1 Dec. 231 (31 Bull. 140), does not, we think, state the law.

If a plaintiff wins in the trial court but the judgment is reversed in the upper court, he has a year after reversal in which to bring a new action; or, if he fails in the trial court otherwise than upon the merits, he has the same right.

In the ease at bar Jones failed in the trial court upon the merits, viz., upon a demurrer to the facts. By tailing an appeal he took the chances of losing by limitation of time. The dismissal of the appeal and the affirmance on error did not, we think work an extension.

Judgment affirmed.

Allread and Ferneding, JJ., concur.  