Lyon v. Barnes

Ladd, L— The action was against Closson, a resident of Buchanan county, where the trial was had, and Barnes, a nonresident living in Bremer county. -At the close of plaintiff’s evidence, verdict was directed and returned in favor of Closson. Barnes then announced through his attorney that he did not care to introduce any evidence, and suggested the propriety of, without consenting to, directing a .verdict against him. Upon intimation by the court, plaintiff so moved, and such a verdict was returned. Judgment was entered on the verdict in favor of Closson, and the action against Barnes dismissed on his motion by virtue of section 3502 of the Code, which enacts that: “Where an action provided for in the preceding section is against several defendants, some of whom are residents and others non-residents of the county, and the action is dismissed as to the residents, or judgment is rendered in their favor, or there [720] is a failure to obtain judgment against sucb residents, such non-residents may, upon motion, have said cause dismissed, with reasonable compensation for trouble and expense in attending at the wrong county, unless they having appeared to the action, fail to object before judgment is rendered against them.” Appellant contends that this was eri’or, for that Barnes, though a non-resident, being personally present, proceeded with the trial after the cause had been dismissed as against the resident Olosson, and by submitting himself to the jurisdiction of the court waived the right to a dismissal of the action. Had this occurred there might be ground for an argument that such right had been waived. But the return of a verdict in favor of Closson was not a dismissal of the action. It did not terminate the jurisdiction of the court over the parties or the subject-matter. It might be set aside and a new trial ordered or in some eases judgment entered notwithstanding verdict. A dismissal signifies the ending of the particular suit, though not necessarily of the controversy involved. Leese v. Sherwood, 21 Cal. 151, 164. The term seems to have been borrowed from the chancery practice, and imports the same as discontinuance or the sending of the cause out of court. English v. Dickey, 128 Ind. 174 (27 N. E. 495, 13 L. R. A. 40); Thurman v. James, 48 Mo. 235; 14 Cyc. 391. So that the cause had not been disposed of as against the resident defendant as contemplated by section 3502, Code, prior to the return of the verdict against the non-resident, and the latter was not entitled to have the action dismissed as against himself until long after such verdict had been returned. In McAlister v. Safley, 65 Iowa, 719, there was an agreement to try the issues between the plaintiff therein and the non-resident defendant. After plaintiff’s opening statement, the defendant moved .that as the action had been abandoned as against the resident defendants, it be dismissed against the non-residents. The ruling of the trial court in [721] refusing to dismiss was approved, on the ground that the action was still pending against the other defendants; the court saying that: “ To constitute a failure to obtain judgment against them, there must have been either some final disposition of the case against those defendants or an abandonment by plaintiff of his claim against them.” In Brown v. Iowa Legion of Honor, 107 Iowa, 439, the court held that the right of the non-resident to a dismissal must be raised by motion, and that this should be presented upon the discontinuance of the cause against the resident defendants. This does not mean that the motion can only be filed at that particular time, but that it should be pressed upon the attention of the court for consideration as a necessary sequence of the termination of the action against the residents. See, also, Woodling v. Mitchell, 127 Iowa, 262. No right to have the action dismissed existed under this statute until it had been terminated as against the resident defendant, and, as appellee did nothing thereafter which might be construed as a waiver, the court did not err in dismissing the action as against him because of his non-residence. Appellant’s motion to strike appellee’s additional abstract is overruled.— Affirmed.