Koll v. Stanton-Pilger Drainage Dist.

• Decision Date: 05 December 1980
• Docket Number: STANTON-PILGER,No. 43118,43118
• Citation: 207 Neb. 425,299 N.W.2d 435
• Parties: Robert W. KOLL et al., Appellees, v.DRAINAGE DISTRICT, Appellant.
• Court: Nebraska Supreme Court

Page 435

299 N.W.2d 435

207 Neb. 425

Robert W. KOLL et al., Appellees, v. STANTON-PILGER DRAINAGE DISTRICT, Appellant.

No. 43118.

Supreme Court of Nebraska.

Dec. 5, 1980.

Syllabus by the Court

1. Dismissal and Nonsuit. Plaintiff may dismiss an action without prejudice to a future action as a matter of right at any time before final submission of case.

2. Demurrers: Final Orders. An order sustaining a demurrer is not a final order and is not a final submission of the case.

Grady, Caskey & Thor, Stanton, for appellant.

Vincent J. Kirby, Norfolk, for appellees.

Heard before BOSLAUGH, BRODKEY, and HASTINGS, JJ., and BLUE and CAPORALE, District Judges.

BLUE, District Judge.

The plaintiffs filed an action in the District Court for Stanton County, Nebraska, seeking injunctive relief and damages. In the course of the proceedings, a second amended petition was filed, to which the defendant filed a demurrer claiming that the petition did not state facts sufficient to constitute a cause of action and that there was a misjoinder of parties and of causes of action. This demurrer was sustained by the court on September 11, 1979, and the plaintiffs were given 2 weeks in which to file another amended petition. Plaintiffs did not file another amended petition within that time; and on October 15, 1979, defendant filed a motion for a default judgment, asking that the action be dismissed with prejudice. Plaintiffs appeared for a hearing on the motion for default; however, without hearing this motion, the trial court, on plaintiffs' motion, granted plaintiffs leave to dismiss the action without prejudice as a matter of right, for the reason that the case had not been finally adjudicated.

The defendant filed a motion for new trial. In overruling this motion, the trial judge indicated that the dismissal was a discretionary matter with the court. Defendant has now appealed, claiming not only that plaintiffs had no right to dismiss without prejudice, but also that the court abused its discretion by allowing the dismissal.

Neb.Rev.Stat. § 25-601 (Reissue 1979) provides, in part, that an action may be dismissed without prejudice to a future action by the plaintiffs before the final submission of the case to the jury, or to the court where the trial is by the court. It is well settled in Nebraska that a plaintiff may dismiss his action without prejudice as a matter of right at any time before final submission. It is a statutory right and not a matter of judicial grace or discretion. Gebhart v. Tri-State G. & T. Assn., 181 Neb. 457, 149 N.W.2d 41 (1967); Giesler v. City of Omaha, 175 Neb. 706, 123 N.W.2d 650 (1963).

The question then to be considered in determining whether plaintiffs had a right to dismiss under § 25-601 is whether the sustaining of a demurrer is a final submission of the case, as claimed by defendant. A "final submission" within the rule that plaintiffs can dismiss only before final submission, contemplates a submission on both the law and the facts, and is a final submission only when nothing remains to be done to render it complete. 27 C.J.S. Dismissal and Nonsuit § 20b (1959).

A demurrer under Neb.Rev.Stat. § 25-806 (Reissue 1979) merely challenges defects shown on the face of the petition, which defects often can be corrected by the pleader. In fact, Neb.Rev.Stat. § 25-854 (Reissue 1979) contemplates that, if a demurrer is sustained, an adverse party may amend if the defect could be remedied by way of amendment. Although there may be some cases in which a right to amend is curtailed, ordinarily it is error for the court not to grant leave to amend when the defect could be cured by amendment. Cagle, Inc. v. Sammons, 198 Neb. 595, 254 N.W.2d 398 (1977).

It is well-settled law that the sustaining of a general demurrer not followed by a judgment of dismissal terminating the litigation does not constitute a final order reviewable by this court. Root v. School Dist. No. 25, 183 Neb. 22, 157 N.W.2d 877 (1968).

There are few cases dealing with whether the plaintiffs have a right to dismiss after the sustaining of a demurrer to the petition. One such case is Alphons Custodis C. Con. Co. v. Aetna In. Co., 160 Ill.App. 140 (1911), where the defendant demurred to an amended declaration and, after a hearing, the court sustained the demurrer and gave the plaintiff 30 days in which to amend its declaration and, before the time was up, the plaintiff moved the court for leave to take a nonsuit. It was held that the trial court did not err in allowing the nonsuit; the appellate court rejected the contention that the case had been submitted for final decision upon a general demurrer and that, therefore, it was too late for the plaintiff to take a nonsuit in view of the statute barring a nonsuit where a case was tried before the court without a jury unless taken "before the case is submitted for final decision." The appellate court stated that no final judgment was entered, the trial court merely making an interlocutory order and sustaining...