Belzor v. Logan

Cole, J. Our statute provides (Bev., § 3127) : “ An action may be dismissed, and such dismissal shall be without prejudice to a fixture action: 1. By the plaintiff before the final submission of the case to the jxxry, or to the court, when the trial is by the court * * This is construed to be equivalent to a denial of the right to dismiss after such submission. It has often been held by this court, that under our statutes (§§ 3093, 3094) the report of a referee was like, and had the same effect as, a verdict of the jury or a finding by the court, and certainly the reason which would deny a party the right to dismiss his action after the final submission of his case to a jury or 324 to the court would also deny it to him after he’had made a like submission to a referee. But the trouble in this view is, that we must construe statutes and be confined to the language used, and cannot extend them to any thing and every thing within the range of the reason which prompted their enactment for the particular things specified in them. The statute only enumerates two out of the three methods of trial prescribed by it, a final submission in which will bar the right of the plaintiff to dismiss his action. The other method, a trial by referee, is not within the terms of the statute, nor within any recognized rule for the construction of the language used in it. We cannot, therefore, hold that the plaintiff was concluded from dismissing his action by reason of the statute. Aside from the statute, we find that a plaintiff might discontinue his action at any time, except after verdict or writ of inquiry, without leave of court. Cooke Jac. 35; 1 Lilly’s Abr. 473; 6 Watts and S. (Pa.) 147; Everett v. Taylor, 32 Mo. 390. Affirmed.