Beasecker v. Reinheimer

*440ON MOTION FOR REHEARING

By THE COURT.

The above entitled cause is now being-determined on application for rehearing filed by counsel for plaintiff in error.

The motion and letter submitted to us does not show that copy was filed on counsel for defendant in error. Ordinarily applications would not be considered in the absence of such showing. Of course, this formality could be easily complied with. In reality this raises a question of clarification of our order rather than any controversial question between the parties and by reason thereof, we will pass on the motion at once.

We are of the opinion that the order of the Common Pleas Court entering the judgment that should have been entered by the court below will not deprive plaintiff in error from prosecuting a new action. The decisions are very clear and to the point that after this expiration of the statutory period for rendering of judgment a discontinuance arises and the Justice has no power except to enter a judgment of dismissal. This is specifically stated in the case of Eaton v French, 23 Oh St 560. On page 56.1 of the opinion Judge Day makes the following statement:

“But the judgment was not rendered until eight days after the trial. Had the case been tried on its merits, the Justice could then properly have rendered no other judgment than one of dismissal.”

In order to remove all question of doubt, the judgment of the Common Pleas Court may be modified so as to state that the dismissing the bill of particulars is without prejudice to a new action.

HORNBECK, PJ, KUNKLE and BARNES, JJ„ concur.