Mathews v. Taaffe

Mitchell, J. While the plaintiff himself cannot dismiss his action, where a provisional remedy has been allowed, or counterclaim made, or affirmative relief demanded in the answer, yet the court may do so, upon his application and sufficient cause shown, at any time before trial. Gen. St. 1878, c. 66, § 262, subd. 2. This power the court assumed to exercise in this case, and, if it erred in so doing, it was incumbent upon the appellant to make it appear. The record, which consists merely of the pleadings and the judgment of dismissal entered by the clerk, does not disclose what showing was made upon plaintiffs’ application, and hence fails to show that, in granting it, the court committed error. Judgment affirmed.