Bolstad v. Paul Bunyan Oil Co.

• Decision Date: 30 April 1943
• Docket Number: No. 33562.,33562.
• Citation: 215 Minn. 166,9 N.W.2d 346
• Parties: BOLSTAD v. PAUL BUNYAN OIL CO. et al.
• Court: Minnesota Supreme Court

215 Minn. 166
9 N.W.2d 346

BOLSTAD
v.
PAUL BUNYAN OIL CO. et al.

No. 33562.

Supreme Court of Minnesota.

April 30, 1943.

Appeal from District Court, Aitkin County; Alfred L. Thwing, Judge.

Action by O. R. Bolstad against Paul Bunyan Oil Company and others, and Clifford Van Loon to recover for personal injuries. The jury disagreed and was discharged. Plaintiff entered a voluntary dismissal. Defendant Van Loon objected to the dismissal and moved for judgment notwithstanding disagreement of jury. After denial of the motion, judgment of dismissal was entered, and Van Loon appealed therefrom. On motion by plaintiff to dismiss the appeal.

Appeal dismissed.

Syllabus by the Court.

1. Under Minn.St. 1941, § 546.39(1), Mason St. 1927, § 9322[1], the plaintiff has

[9 N.W.2d 347]

the right voluntarily to dismiss the action after denial of a motion by the defendant under Id. § 605.06 (§ 9495) for judgment notwithstanding the disagreement of the jury.

2. An order denying a motion under Id. § 605.06 (§ 9495) for judgment notwithstanding the disagreement of a jury is not reviewable on appeal, under Id. § 605.09(1) (§ 9498[1]), from a judgment of dismissal entered under Id. § 546.39(1) (§ 9322[1]).

Durham & Swanson, of Minneapolis, for appellant.

Joseph W. Ryan, of Aitkin, for respondent.

PETERSON, Justice.

This is an appeal from a judgment dismissing the action without prejudice, after denial of defendant Van Loon's motion for judgment notwithstanding disagreement of the jury.

Plaintiff sued to recover for personal injuries. The jury disagreed and was discharged. Defendant Van Loon then moved under Minn.St. 1941, § 605.06, Mason St. 1927, § 9495, for judgment notwithstanding the disagreement of the jury. Prior to hearing of the motion plaintiff entered a voluntary dismissal of which he gave due notice to defendants. Defendant Van Loon objected to the dismissal. After denial of him motion for judgment non obstante, defendant Van Loon procured an order dismissing the action without prejudice, caused judgment of dismissal to be entered thereon, and appealed from the judgment.

Plaintiff moves to dismiss the appeal upon the ground that dismissal of the action below is authorized under § 546.39(1) (§ 9322[1]) as one ‘before the trial begins.’ Defendant Van Loon contends that the dismissal is unauthorized as one before trial, because it occurred after a trial and disagreement of the jury, and because in that situation he had the right under § 605.06 (§ 9495) to have his motion determined, notwithstanding any attempt to dismiss the action and have the determination of the motion, if adverse to him, reviewed on appeal from the judgment of dismissal subsequently entered.

1. Under § 546.39(1) (§ 9322[1]) a plaintiff has the right, except in certain cases not here material, voluntarily to dismiss an action ‘before the trial begins.’ A dismissal after a mistrial is ‘before the trial begins,’ because a mistrial is in legal effect no trial at all. After a mistrial the case stands as if there had been no trial of any kind. In Phelps v. Winona & St. Peter Ry. Co., 37 Minn. 485, 490, 35 N.W. 273, 275,5 Am.St.Rep. 867, a dismissal after a new trial was granted was held to be ‘before trial,’ within the meaning of the statute. There we said: ‘The award of a new trial wipes out the verdict. * * * It is a mistrial, and the plaintiff has the same right to dismiss or discontinue as if no trial had ever been had.’ In harmony with the views expressed in the Phelps case it is held that where the jury disagrees there is a mistrial, which in legal effect is the same as if there had been no trial. Fisk v. Henarie, C.C., 32 F. 417, 427;Baird v. Chicago, R. I & P. R. Co., 61 Iowa 359, 13 N.W. 731,16 N.W. 207. This was the undoubted rule when § 605.06 (§ 9495) was amended by L. 1917, c. 24, § 1, so as to authorize a motion for judgment notwithstanding a disagreement the same as one notwithstanding an adverse verdict. Section 605.06 (§ 9495) reads: ‘When, at the close of the testimony, any party to the action moves the court to direct a verdict in his favor, and such motion is denied, upon a subsequent motion that judgment be entered...