Brown v. St. Paul Mercury Ins. Co., 89-180

• Decision Date: 30 October 1989
• Docket Number: No. 89-180,89-180
• Citation: Brown v. St. Paul Mercury Ins. Co., 300 Ark. 241, 778 S.W.2d 610 (Ark. 1989)
• Parties: Glenda BROWN, et al., Appellants, v. ST. PAUL MERCURY INSURANCE COMPANY, Appellee.
• Court: Arkansas Supreme Court

Page 610

778 S.W.2d 610

300 Ark. 241

Glenda BROWN, et al., Appellants, v. ST. PAUL MERCURY INSURANCE COMPANY, Appellee.

No. 89-180.

Supreme Court of Arkansas.

Oct. 30, 1989.

Hani W. Hashem, Monticello, for appellants.

T. Scott Clevenger, Little Rock, for appellee.

PURTLE, Justice.

The trial court granted a summary judgment in favor of the appellee. We agree with the appellants' argument for reversal that the court should have allowed a nonsuit.

This is the second appeal in this case. In Brown v. St. Paul Mercury Ins. Co., 292 Ark. 558, 732 S.W.2d 130 (1987), we reversed and remanded the case to the trial court on a point concerning the statute of limitations.

On April 26, 1989, the appellee filed a motion to dismiss. The the appellants' attorney mailed the trial judge a letter on May 4, 1989, which, states in part: "In light of the defendant's recent motion to dismiss, the plaintiffs would like to take voluntary dismissal without prejudice before a ruling by the court on the motion to dismiss." The attorney included a draft of an order of dismissal, which the judge never signed. An amended order of dismissal stated: "That Plaintiff moved for alternative relief by Order of Dismissal without prejudice and this is denied."

Arkansas Rules of Civil Procedure, Rule 41(a), in part states: "[A]n action may be dismissed without prejudice to a future action by the plaintiff before the final submission of the case to the jury, or to the court where the trial is by the court...."

A similar issue has been decided by this court in Duty v. Watkins, 298 Ark. 437, 768 S.W.2d 526 (1989), where...