Murray First Thrift & Loan Co. v. Benson

MAUGHAN, Justice: Before us is an order of the court below dismissing, with prejudice, counts two and three of plaintiff’s third-party complaint against George P. Ruff. We affirm that order, and award costs to Ruff. This case was some sixteen months in preparation. All parties appeared at the appointed time for trial. A jury was impaneled, and opening statements were made. At this juncture a noon recess was called. During this recess plaintiff settled its claim against the Bensons — the Bensons agreed to transfer certain realty to plaintiff. As a result, plaintiff moved counts two and three of its third-party complaint, against Ruff, be dismissed without prejudice; for the reason plaintiff would not know “until we have liquidated the Benson property whether, and to what extent, Murray has been injured ... by Mr. Ruff.” Counsel for Ruff objected, and moved the court to dismiss counts two and three with prejudice. He stated he had been some sixteen months in preparation, and his client was there ready to proceed. The court inquired of counsel for plaintiff, if he were ready to proceed, he said “no,” giving the reason quoted above. Thereupon the court took the action we have affirmed. Rule 41(a)(2), U.R.C.P., invests the court with a reasonable discretion in the matter of dismissals. The record does not disclose this discretion to have been abused. (Shaffer v. Evans, 10 Cir., 263 F.2d 134.) ELLETT, C. J., and CROCKETT, WILKINS and HALL, JJ., concur.