Defendant in error filed an action before a justice of the peace against plaintiff in error, who filed a counterclaim.
The plaintiff, lumber company, recovered a judgment before the justice and defendant, Hall, failed on his counterclaim and appealed the cause to the common pleas court.
Thereupon, against the objection of the defendant, plaintiff dismissed .its cause of action “without prejudice,” which it claimed authority to do under Section 11586, General Code, which provides:
“An action may be dismissed without prejudice to a future action: L By the plaintiff, before its final submission to the jury, or to the court, when the trial is by court,” etc.
This section is part of a chapter relating to proceedings in the common pleas court in actions originating there, but it is claimed is made applicable to appealed cases by Section 10387, General Code, which is as follows:
*44“When an appeal is taken from a judgment of a justice of the peace, to the court of common pleas, the plaintiff below shall be plaintiff above; and in all respects, the parties must proceed as if the action originally had .been commenced in that court.”
The effect of the above section is to make the rules and laws governing procedure in the common pleas court applicable in so far as there is a lack of' special provision in the statutes for appealed cases.
We find that the subject of dismissal of appealed cases in the common pleas court is fully covered by Part Third, Title II, Chapter 9, General Code.
We are, therefore, of the opinion that Section 10387 only applies to such cases when they are to proceed in the appellate court, as it only provides how the parties “must proceed” and says nothing about how they must or can stop. As the dismissal of such cases is fully provided for in other sections of the same chapter, we think the words “must proceed” as here used refer to the conduct of the trial and that the purpose of the section is to furnish, by • reference, and in a brief way, the rules for pleadings, evidence, verdict, etc., and do not include or apply to such cases the rules as to dismissals of cases originating in the common pleas court.
We find no authority in Chapter 9, above referred to, for a dismissal by the olaintiff “without prejudice,” and finding that Section 11586 is inapplicable, the judgment below is reversed.
Cause remanded for further proceedings.
Judgment reversed, and cause remanded.
■ Messrs. Stephens, Lincoln & Stephens, for plaintiff in error. Messrs. Cobb, Howard & Bailey and Mr. H. L. Rockelj for defendant in error.