Beals v. W. Union Tel. Co.

• Court: Nebraska Supreme Court
• Writing for the Court: NORVAL
• Citation: Beals v. W. Union Tel. Co., 53 Neb. 601, 74 N.W. 54 (Neb. 1898)
• Decision Date: 02 February 1898
• Parties: BEALS ET AL. v. WESTERN UNION TEL. CO.

53 Neb. 601

74 N.W. 54

BEALS ET AL.

v.WESTERN UNION TEL. CO.

Supreme Court of Nebraska.

Feb. 2, 1898.

Syllabus by the Court.

A plaintiff has an absolute right to dismiss his action at any time before the final submission of the cause, subject alone to compliance with conditions precedent, such as the payment of costs, etc., as may be imposed by the court.

Error to district court, Brown county; Bartow, Judge.

Action by Beals, Torrey & Co. against the Western Union Telegraph Company. Defendant had judgment, and plaintiff brings error, Reversed, with directions.J. C. McNerney and Macfarland & Altschuler, for plaintiff in error.

Estabrook & Davis, for defendant in error.

NORVAL, J.

This action was for the recovery of damages sustained by the plaintiff for the failure of the defendant to correctly transmit and deliver a message. Before the final submission of the cause, plaintiff asked leave to withdraw a juror, which motion was denied by the court, as was likewise overruled the application of plaintiff for leave to dismiss the cause without prejudice to a future action. A verdict, under a peremptory instruction of the court, was returned for the defendant, and the judgment entered thereon is before us for review.

It appears from the record that, before the final submission of the cause to the jury, plaintiff asked permission to dismiss the action without prejudice, which application the court denied. This ruling was clearly erroneous. By section 430 of the Code of Civil Procedure, the right is given a plaintiff to dismiss his action without prejudice to a future suit at any time prior to final submission, upon such...