National Hotel Co. v. Crane Bros. Manufacturing Co.

Opinion by Strang, C.: This action was commenced in the district court of Saline county by Crane Brothers Manufacturing Company against J. F. Burrows and the National Hotel Company, on an account against said J. F. Burrows for goods sold and delivered to him, and to have the judgment obtained against Burrows declared a lien on the property of the hotel company in which the goods were kept and used. When the case came on for trial, the plaintiff introduced its evidence and rested. The defendant, the National Hotel Company, demurred to the evidence, which demurrer was sustained. The plaintiff filed a motion for a new trial. This motion was overruled. The plaintiff then asked leave of the court to dismiss its action without prejudice. The court thereupon dismissed the case without prejudice to a new action, over the objection of the defendant, the hotel company, which saved an exception and made a case for this court. There is but one question here, and that is based upon the action of the court below in dismissing the case without prejudice. It is alleged by the plaintiff in error that the court had no power to dismiss the case without prejudice, after a demurrer to the evidence had been sustained and a motion for a new trial had been overruled. He cites the statute upon the subject, as follows: “An action may be dismissed without prejudice to a future action: First, by the plaintiff before the final submission of the case to the jury, or to the court when the trial is by the court. . . . Sixth, in all other cases, upon the trial of the action the decision must be upon the merits.” [52] The plaintiff here insists that the ease had- been finally submitted before it was dismissed by the court, and therefore the court was without power to dismiss the case except with prejudice to a new action. Under the law of this court, we do not think the plaintiff had a right to dismiss his action at the time it was dismissed by the court. But that is not the question in this case. The question is, had the court power to dismiss the case without prejudice at the time it exercised that power? This court has already gone a long way towards the settlement of this question, if, indeed, it has not quite done so. In Ashmead v. Ashmead, 23 Kas. 262-264, this court, by Mr. Justice Brewer, says: “It will be conceded that, after the final submission of the case, the plaintiff had no right to a dismissal without prejudice. Up to that time she had such right, and could exercise it at her own option without the consent of the defendant or the permission of the court. At that time her rights in that respect ceased. But has not the court the power in its discretion to permit a plaintiff, even after the final submission, to recall that submission and dismiss without prejudice? It would be both strange and harsh if such power did not exist. All this rests within the discretion of the court, and is not the right of a party. Here the court exercised its discretion, and we cannot say there was any abuse of such discretion.” In the case at bar, the court exercised its discretion, and we cannot now say its action was erroneous without declaring such action an abuse of discretion. There is nothing in the record that would justify this court in concluding that the trial court abused the discretion lodged therein by dismissing this case. For further authority on this question, see Mason v. Ryus, 26 Kas. 464; Schafer v. Weaver, 20 id. 294. It is therefore recommended that the case be affirmed. By the Court: It is so ordered. All the Justices concurring.