
    PIESEKAR v. ESCHUK.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Decided Nov. 14, 1927.
    Syllabus by Editorial Staff.
    398. DISMISSAL — Where, at close of plaintiff’s evidence, motion to dismiss without prejudice has been granted, defendant, who has proceeded on cross-claim until defeat is probable, entitled to dismissal without prejudice.
    Error to Municipal Court.
    Judgment reversed.
    Charles Lefkovitz, Cleveland, for Piesekar.
    M. M. Lueak, Cleveland, for Eschuk.
    STATEMENT OF FACTS.
    Plaintiff below, William Eschuk', sued for damages to his automobile and alleged, as negligence,4 that defendant Albert Piesekar carelessly and ror-kK-isly operated his au’.omobiK TotKs plrad'ng, there was filed a statomrn’ of defense denying negligence', and, by wa ? of cross petition, a claim for-damages againV; plaintiff- on the, ground that'he was going at a high and excessive rate of. spéed*and P-"at. by reason thereof, defendant’s automobile damaged.
   OPINION OF COURT.

The following is takfen, verbatim, from the opinion.

SULLIVAN, -PJ:

r+. annears. bv.. the i record: that when: the plaintiff rested his cpge, a motion was .made for judgment for the defendant, which was ovei ruled 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 proceded 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 and was overruled by the court, after discussing -the question of contributory negligence and intimating what the judgment might be, but before pro-1 nouncing 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 when, after a similar request by plaintiff’s attorney, at the con-. elusion of his case, the court allowed the dismissal of the statement of claim. It is our unanimous opinion that there was error prejudicial to the defendant below. Wiswell v. Congregational Church of Cincinnati, 14 OS. 31; Brinkerhoff, Trustee v. Smith, 57 OS. 610; Schram v. Cincinnati, 14 N. P. (N.S.) 109.

. 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.

(Vickery and Levine, JJ., concur.)  