This action for the partition of real estate was begun by the plaintiff on June 30, 1958. A motion to make the petition definite and certain in the particulars as set forth in the motion was filed by the defendant. The court sustained the motion to make definite and certain in all its branches and granted to plaintiff leave to file an amended petition within rule.
The amended petition was filed, and the defendant filed a motion to strike the amended petition from the file for failure to comply with the former order of the court to make the petition definite and certain in the particulars set out in the motion. The motion to strike the petition was sustained by the court by entry filed October 30, 1958, and in the entry the plaintiff was given leave to file an amended petition within rule.
On November 25, 1958, the court considered an oral motion to dismiss and filed the following entry:
"This day this cause came on to be heard on the oral motion of the defendants to dismiss said cause of the plaintiff, and it appearing that the plaintiff has not filed an amended petition within rule pursuant to a former order of this court, it is hereby ordered that the cause herein be dismissed with prejudice against the plaintiff, and that the plaintiff pay the costs herein taxed at $. . . . . . ."
On December 11, 1958, the plaintiff filed his notice of appeal on questions of law from the order rendered by the Court of *Page 106 Common Pleas dismissing his petition with prejudice and at his cost on November 25, 1958.
The briefs of the parties have to do with the sufficiencies of the petition and the amended petition. However, the appeal is from the dismissal, and Section 2323.05 of the Revised Code provides, in part, as follows:
"An action may be dismissed without prejudice to a future action:
"* * *
"(E) By the court, for disobedience by the plaintiff of an order concerning the proceedings in the action;
"* * *."
It does not appear that the plaintiff, appellant herein, can question the correctness of the court's orders in ruling on the motion to make definite and certain and the motion to strike the petition in this proceeding as a timely appeal was not taken from those rulings, and the court was well within its rights in dismissing the action for failure to comply with the "order concerning the proceedings." However, it is to be noted that the action was dismissed with prejudice, and the law only gives a court the right to dismiss the action without prejudice to another action.
For that reason the cause will be remanded for further proceedings in accordance with the law.
Judgment accordingly.
BRYANT, P. J., and DUFFY, J., concur.
MILLER, J., not participating. *Page 107