Grimes v. Chamberlain

• Court: Nebraska Supreme Court
• Writing for the Court: REESE
• Citation: Grimes v. Chamberlain, 27 Neb. 605, 43 N.W. 395 (Neb. 1889)
• Decision Date: 16 October 1889
• Parties: GRIMES v. CHAMBERLAIN ET AL.

27 Neb. 605

43 N.W. 395

GRIMES

v.CHAMBERLAIN ET AL.

Supreme Court of Nebraska.

Oct. 16, 1889.

Syllabus by the Court.

1. An action may be dismissed without prejudice to a future action by a plaintiff before the final submission of the case to the jury or court, where the trial is to the court, (section 430, Civil Code;) and such dismissal may be made at the option of the plaintiff, without leave of the court. It is a right specially given by statute, which the court has no power to refuse. An entry of dismissal terminates the jurisdiction of the court over the cause of action presented by such plaintiff, except for the purpose of entering the order of dismissal and rendering judgment for costs.

2. The supreme court, in the exercise of its appellate jurisdiction, has no authority to reinstate a cause in the district court which has been there voluntarily dismissed by the plaintiff, where the application to reinstate is originally made in this court. The grounds for such application being that the dismissal was obtained by fraud, the district court alone would have such jurisdiction.

3. An order of the district court refusing to dismiss a cause upon the motion of a defendant is not a final order which can be reviewed upon error to the supreme court.

Error from district court, Johnson county; APPELGET, Judge.S. P. Davidson, for plaintiff in error.

REESE, C. J.

This action was instituted in the district court of Johnson county in the names of William R. Wright and Sytha Philips, formerly Sytha Wright, as the heir at law and widow of Henry R. Wright, (the said William R. Wright being the sole heir,) as plaintiffs, and against L. F. Grimes as defendant, to quiet the title to certain real estate described in the petition. The petition was filed on the 8th day of December, 1888, and on the 7th day of January, 1889, Grimes filed a demurrer to said petition. On the 4th day of May, 1889, defendant in error Chamberlain filed his petition, by which he sought to be made a party defendant in the action, alleging that he had an interest in the subject-matter of the suit, and a legal estate in the land in dispute, and adverse to both plaintiff and defendant. On the 6th day of May the plaintiffs William R. Wright and Sytha E. Philips filed a “motion for dismissal of the action,” which, omitting the formal parts, was as follows: “The above suit having been commenced by reason of inducements held out to us, and before we were fully advised of our rights in the premises, we therefore, of our own motion, dismiss the above-entitled cause, and ask that the court enter an order herein dismissing the same.” This instrument was signed by the parties themselves, and not by an attorney for them. It bore date January 1, 1889. On the 18th day of May the application of Chamberlain to be made a party defendant was argued and submitted to the court, and, on the 22d day of the same month, defendant, (Grimes,) by his attorney, filed his motion to dismiss the case, assigning as grounds therefor the following: (1) Said plaintiffs were induced to institute said cause before they fully understood whether such suit was necessary or not, and before they understood the facts; (2) said plaintiffs, before any answer was filed in said cause, asked that said cause be dismissed; (3) said plaintiffs still ask for a dismissal of said cause; (4) defendant Chamberlain has no such interest in this controversy as should be litigated in this suit; (5) all other parties in this suit ask that this cause be dismissed. The petition, and numerous exhibits attached to said motion, including the dismissal filed by the plaintiffs, were referred to as part of it, and for the purpose of that hearing were included in it. On the same day A. M. Appelget filed his petition for leave to intervene, alleging that he was a duly-authorized attorney of the district court, and as such was employed by and on behalf of the plaintiffs in the action at the time of the commencement of the suit; that prior to the filing of the dismissal of the suit by plaintiffs, and which was filed without the knowledge of the said attorney, the applicant filed, in connection with C. K. Chamberlain, also an attorney for plaintiffs in said cause, his lien, as attorney, for services rendered plaintiffs, in the sum of $2,000, and gave notice to the attorneys of the defendant, in writing, of the filing thereof; that no part of the said $2,000 had been paid; and that he had an interest in the subject-matter in litigation to the extent of the said lien, and adverse to both plaintiffs and defendant. He therefore asked to be made a party defendant, and to be permitted to defend as against defendant Grimes, and prosecute the suit as against the plaintiffs. On the same day, to-wit, on May 22, 1889, the following order was made in the case, being the only...