dissent">

On Petition foe Rehearing.

Baker, J.

On behalf of the railway company, counsel urge that the dismissal was erroneous. Counsel admit that *395on. the statement of the ease as made in the opinion this court had no jurisdiction of the appeal. They contend, however, that the statement is incorrect and that the record discloses that the railway company was the sole defendant to the judgment in favor of Dresback. If such were the record, counsel who filed the transcript were in error in making Owen and the Illinois Trust and Savings Bank parties appellant; and they recognize the logic of their position by omitting those appellants from this petition. The contention that the court’s statement is wrong is based on a recital at the beginning of the finding and judgment: “Charles S. Owen v. Chicago, Indiana and Eastern Railway Company et ah, No. 7528. Judgment on Dresbaek’s claim. Come now Lewis C. Dresback by his attorney, Austin DeWolf, and the Chicago, Indiana and Eastern Railway Company by John A. Kersey, its attorney, the said action having been dismissed as to all other parties of record without prejudice to the said Lewis O. Dresback, and the court, having heard the evidence in the case and being sufficiently advised in the premises, finds,” etc. Then follows the finding and judgment as stated in the opinion. Counsel insist that the court must have overlooked the italicized recital. After a careful consideration of every word in the record, a condensed statement was given, in the opinion, of the facts on which the question of jurisdiction rests. There are two reasons why the recital is ineffective to dismiss the cross-complaint of Dresback as to all defendants thereto except the railway company, that seemed so obvious that it was not thought necessary to set forth the record in greater detail. In the first place, the recital, under the caption of Owen against the railway company and others, does not recite that anything had been dismissed except Owen’s action. In the second place, even if the recital was that Dresback had dismissed his cross-action as to all defendants thereto except the railway company, the recital would be ineffective unless the record were otherwise silent as to what the recited dismissal actually was; but, if the record *396affirmatively disclosed what was actually dismissed, the record of what was done would overcome any later recital of what had been done. Hawkins v. Hawkins, 28 Ind. 66; Coan v. Clow, 83 Ind. 417. The issues made upon Owen’s complaint and upon all the cross-complaints were together submitted to the court for trial; After the evidence upon all these issues had been heard and the court had taken its decision under advisement, Owen dismissed his action and all the cross-complainants except Dresback dismissed their cross-actions. But they certainly did not thereby dismiss themselves out of court as defendants to Dresback’s cross-action. Dresback did not dismiss as to any of them; and none withdrew his answer to Dresback’s cross-complaint and filed a disclaimer. So the record remains as stated that “the cause was determined upon the cross-complaint of Dresback and the answers thereto”; and counsel correctly understood the record when they appealed on behalf of Owen and the Illinois Trust and Savings Bank.

Rehearing denied.

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