¶1The plaintiff below was Laparo. He brought suit against Artino, before a justice of the peace, and recovered judgment.
¶2The defendant appealed the case to the common pleas giving *69his bond therefor and filing transcript from the-docket of the justice of the peace, with the clerk.
¶3The plaintiff failed to file petition within the statutory period, and on motion of the defendant, the case was dismissed in the common pleas court.
¶4Plaintiff sued again before a justice of peace, on the same claim. Defendant produced the record of the proceedings in the former case, claiming the same as a bar. The result was a judgment again in favor of the plaintiff. The defendant prosecuted error to the common pleas on this last judgment and, on hearing the judgment of the justice of the peace was affirmed.
¶5The present proceeding is brought to reverse this judgment of affirmance and the judgment of the justice of the peace. The question therefore presented is whether the proceedings in the former case constituted a bar to the latter suit on the original claim. On the part of the plaintiff in error it us urged that to permit that to be done which was done in this case, would enable a plaintiff to harass a defendant beyond all reason, and therefore it should not be permitted.
¶6This would be equally true if plaintiff, after bringing his suit before the justice of the peace had dismissed it before its being brought to trial, and yet, without question he could have done this, and again bring suit on the same claim.
¶7As said in the brief of plaintiff in error, the giving of the appeal bond and the filing of the transcript suspended the judgment which had been taken, and if the plaintiff had filed his petition in the proper time the case would then have been in the common pleas, to have been proceeded with as though originally brought in that court. Suppose this had all been done, and the case had thereafter been dismissed for some reason other than upon the merits, the plaintiff would not have been barred from suing again, and there seems no good reason why the dismissal of the case for failure to file a petition should work any more severely upon the plaintiff than a dismissal after the filing of the petition, for want of prosecution or for any cause other than upon the merits.
¶8The case cited by counsel for plaintiff in error, Baltimore & Ohio Ry. v. Washington, 1 O. S. U. 377 (34 Bull. 266), materially differs from the case at bar.
¶9*70In that case judgment was rendered in favor of the defendant in the lower court. The plaintiff appealed, and then asked leave to dismiss the case without prejudice. This, if granted, would have left the party who had obtained a judgment below deprived of the benefit of that judgment by the simple act of the losing party, without any further hearing on the merits.
¶10In the case at bar, the plaintiff, by failure to file his petition in time, lost the benefit of his judgment obtained before the justice of the peace, but he deprived the other party of nothing.
¶11Section 5314 It. S. (Sec. 11586 G. C.), providing for dismissal of a case without prejudice to a new action, after enumerating the causes, says:
“In all other cases the decision must be upon the merits upon the trial of the action.”
¶12In Loudenback v. Collins, 4 Ohio St. 251, it is said in the head-note, and borne out by the opinion, that to render the dismissal of an action a !»ar to a new action on the same cause, it must be established that the dismissal was upon the merits.
¶13Here it is shown affirmatively that the dismissal was not upon the merits. The result is that such dismissal is not a bar to a new action and the judgment is affirmed.