Majority
p. 893WILLIAM MOORES, App’lt, v. JOHN TOWNSHEND, Resp’t.
Headnote
Complaint—Dismissal of—When no adjudication on the merits. >Appeal from judgment dismissing complaint-
Robert B. Wensley, for app’lt; John Townshend, for resp’t.
The defendant being in possession of the premises, claiming under a lease, and there being no proof as to the value of the lease under which
p. 894
he claimed title, and the lease being the subject matter of the litigation there-was no proof as to the value of the' subject matter, and consequently no basis for an allowance The granting of an allowance was therefore improper
The insertion in thu judgment of the statement that the complaint was dismissed upon the merits seems also to have been without warrant, as the plaintiff substantially submitted to a dismissal of the complaint upon the trial and there was no adjudication upon the merits
The judgment appealed from should therefore be modified by striking therefrom the words on the merits ’ and as so modified affirmed, with taxable, costs only, in the court below, and without costs of the appeal to either party.