Inman Mfg. Co. v. American Cereal Co.

• Decision Date: 25 June 1912
• Citation: 136 N.W. 932,155 Iowa 651
• Parties: INMAN MANUFACTURING CO., Appellant, v. THE AMERICAN CEREAL CO., Appellee
• Court: Iowa Supreme Court

136 N.W. 932

155 Iowa 651

INMAN MANUFACTURING CO., Appellant, v. THE AMERICAN CEREAL CO., Appellee

Supreme Court of Iowa, Des Moines

June 25, 1912

Appeal from Linn District Court.--HON. M. P. SMITH, Judge.

APPEAL from an order refusing to dismiss plaintiff's cause of action and the entry of judgment dismissing the petition as amended on the merits.

Affirmed.

H. V Borst, H. M. Remley, and Jamison, Smyth & Hann for appellant.

Dawley & Wheeler for appellee.

OPINION

LADD, J.

Upon remand of this cause, after the last decision by this court the plaintiff filed a dismissal, saying that it "hereby dismisses its petition and cause of action in the above-entitled cause upon its own motion and at its own costs and without prejudice." Ordinarily such a dismissal would be available to the plaintiff even after reversal on appeal and exact entry of judgment accordingly. Rynear v Neilin, 4 G. Greene, 524. Section 3764 of the Code provides that "an action may be dismissed, and such dismissal shall be without prejudice to a future action: (1) By the plaintiff, before the final submission of the case to the jury, or to the court when the trial is by the court." Impliedly this prohibits such dismissal after final submission. Belzor v. Logan, 32 Iowa 322; Dunn v. Wolf, 81 Iowa 688, 47 N.W. 887; McArthur v. Schultz, 78 Iowa 364, 43 N.W. 223.

A cause is not finally submitted until the jury proceeds or has been directed to proceed with its consideration after the instructions have been read. Harris v. Beam, 46 Iowa 118, and Livingston v. McDonald, 21 Iowa 160. Nor until the cause after submission to the court by the parties is being considered or has been taken under advisement by the court. Toof v. Foley, 87 Iowa 8, 54 N.W. 59; Carney v. Reed, 117 Iowa 508, 91 N.W. 759. Unless the objections to such dismissal interposed by defendant then were sufficient, the dismissal should have been entered in accordance with plaintiff's request.

The cause had been thrice tried and appealed, and on each appeal reversed. 124 Iowa 734; 133 Iowa 71; 142 Iowa 558. In the opinion last filed the evidence was held insufficient to sustain the verdict and it directed that 'the defendant may elect within thirty days to have cause remanded for a judgment below conforming to this opinion or it may have judgment here." An examination of the several opinions discloses that the court had passed on the different allegations of the petition as amended and the evidence adduced and determined that plaintiff had no cause of action. Construed in connection therewith, there can be no doubt as to the meaning of the language of the opinion quoted, being that judgment should be entered on the merits in this or the district court. Moreover, both parties so treated it; the defendant in electing to have judgment entered in this court, and the plaintiff in resisting a motion for judgment and in its petition for rehearing. In resistance to a motion for judgment, plaintiff insisted upon its right to dismiss without prejudice, and that several items were owing it by the defendant...