Wheeling & L. E. Ry. v. Davider

We see no reason why the Wheeling & L. E. Ry., although once dismissed out of the ease below, upon its objection to the introduction, as against it, of any evidence in support of plaintiff’s petition, because said petition failed to state facts sufficient to constitute a cause of action against it, should not after-wards again be made a party defendant, by leave of court, to answer to an amended petition filed against both it and its co-defendant, before the running of the statute of limitations. The former judgment of dismissal was no bar to a new action Moore v. Dunn, 41 Ohio St. 62. It is not material, therefore, whether the allowance of the motion to correct the entry of dismissal was *235irregular. The reinstatement of the dismissed defendant was the result properly reached.

Passing over the assigned reasons, the court’s last order was, “That the dismissal of said cause as against the Wheeling & L. E. Ry. be vacated and leave given to file her amended petition,” etc. The affirmance of this order dispenses with the necessity for relief under the cross-petition in error; which is therefore dismissed.

Judgment affirmed.