New Hampshire Banking Co. v. Ball
| Decision Date | 06 March 1897 |
| Citation | 57 Kan. 812,48 P. 137 |
| Parties | NEW HAMPSHIRE BANKING CO. v. BALL et al. |
| Court | Kansas Supreme Court |
1. The right of the plaintiff to dismiss his action without prejudice at any time before the final submission of the same is absolute, and the denial of his application to so dismiss is prejudicial error.
2. Where a court finds that a party to an action has been dead for a period so long that the action cannot be revived without the consent of parties, which is not given, the action abates, and should be dismissed at the costs of plaintiff. In such a case a judgment barring and canceling the cause of action is erroneous.
Error from district court, Kingman country; W. A. Bashore, Judge.
Action by the New Hampshire Banking Company against Hiram L. Ball and Eva Ball. From a refusal of leave to dismiss, plaintiff brings error. Reversed.
Adams & Adams and Hay & Hay, for plaintiff in error.
C. W Fairchild and W. C. Tetirick, for defendants in error.
An action was brought by the New Hampshire Banking Company against Hiram L. Ball and Eva Ball to recover upon a promissory note given by them for $2,000, and to foreclose a mortgage which they had given as security for the payment of the note. Other persons who claimed an interest in the real estate were made parties. Within four months thereafter Hiram L. Ball, who held the legal title to the mortgaged land, died, and left surviving him his wife and three sons. Within a year from his death a motion was made to revive the action against the administrator of the estate and the heirs, and the motion was allowed. More than a year after the death of Hiram L. Ball the heirs and administrator challenged the validity of the revivor upon the ground that the attorney who appeared to have consented to a revivor for them was without authority, and did not in fact consent to a revivor. Before the question was determined, or a trial upon the merits had been reached, the plaintiff offered and undertook to dismiss the action without prejudice. The court, however, denied the application to dismiss without prejudice, and thereupon, on application of the defendants to dismiss with prejudice, testimony was heard, and a finding made that there had been no legal revivor of the action within one year after it could have been first made, and that the action died. The conclusion of the court was that the action had not only abated, but that...
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