Hoffman v. Knaus

135 N.E.2d 700, 72 Ohio Law. Abs. 389, 1952 Ohio App. LEXIS 879

• Court: Ohio Court of Appeals
• Decided: May 16, 1952
• Docket: No. 4773
• Status: Published

Opinion

OPINION

By THE COURT.

This is a motion by the plaintiff-appellee seeking an order dismissing the appeal for the reason that the same is not a final order. The order referred to reads as follows:

“Motion to dismiss without prejudice to action in another court sustained. Petition and cross-petition dismissed. Costs of Plaintiff.”

The record reveals that the petition was captioned “In the Common Pleas Court” but was filed in the Municipal Court of Columbus; that it was an action for damages in the sum of $10,075.00; that the defendant filed a cross-petition praying for damages in the sum of $10,000.00. It appears that upon the plaintiff’s discovering his mistake of being, in the wrong court as the amount sought exceeded the jurisdiction of the Municipal Court, a motion was filed to dismiss “said action, without prejudice to action in another court, for want of jurisdiction.” It will be noted that the order dismissed not only the petition but also the cross-petition. This, we think, affected a substantial right of the defendant. The plaintiff was entitled under §11586 GC to a dismissal of his petition without prejudice, but under §11587 GC the defendant had the right to proceed to trial if the court had jurisdiction of the subject matter of the cross-petition, and if not, it should have merely dismissed the cross-petition. In Ohio Savings Bank v. Marleau, et al, 1 Abs 282, the Court held,

“A judgment of dismissal without prejudice is a final order from which error can be prosecuted to another court.”

See also, Passig v. Ossing, 51 Oh Ap 215.

We are of the opinion that the order appealed from is a final order as defined by §12223-2 GC. The motion will be overruled.

HORNBECK, PJ, WISEMAN and MILLER, JJ, concur.

No. 4773. Decided September 25, 1952.

By THE COURT.'

This is an appeal from a judgment of the Municipal Court of the City of Columbus, Ohio, dismissing plaintiff’s petition and defendant’s cross-petition.

Four errors are assigned, but one question only is sought to be raised, namely, whether the Court erred in sustaining plaintiff’s motion to dismiss the action without prejudice to action in another Court, for want of jurisdiction.

It is the contention of appellant that at the time the motion was sustained, although the petition prayed for damages in the sum of $10,075.00, the cross-petition in which the defendant prayed for judgment in the sum of $10,000.00, had been changed to $2000.00.

Unfortunately for the appellant the question sought to be presented is not exemplified by the record. The amended petition, which is in the transcript of docket and journal entries, carries a prayer for damages in the sum of $10,000.00, and there is no evidence of an amendment thereto.

The judgment will therefore be affirmed.

HORNBECK, PJ, WISEMAN and MILLER, JJ, concur.