State ex rel. Keeling v. Randall

• Decision Date: 14 December 1964
• Docket Number: No. 50852,50852
• Parties: STATE ex rel. Charles W. KEELING, Relator, v. Honorable Alvin C. RANDALL and Honorable John H. Lucas, Judges of the Circuit Court of Jackson County, Missouri, Respondents.
• Court: Missouri Supreme Court

Page 67

386 S.W.2d 67

STATE ex rel. Charles W. KEELING, Relator, v. Honorable Alvin C. RANDALL and Honorable John H. Lucas Judges of the Circuit Court of Jackson County Missouri, Respondents.

No. 50852.

Supreme Court of Missouri, En Banc.

Dec. 14, 1964.

Rehearing Denied Jan. 11, 1965.

Roy A. Larson, Jr., Kansas City, Sprinkle, Carter, Sprinkle & Larson, Kansas City, of counsel, for relator.

C. Thomas Carr, of Sheridan, Baty, Markey, Sanders, Edwards & Carr, Kansas City, for respondents.

HYDE, Judge.

Original proceeding in prohibition to prevent dismissal without prejudice of action by Patrick McNellis against relator for loss of his wife's services, which had been ordered consolidated with an action by his wife, Mary McNellis, against relator for personal injuries. After the cases were consolidated, Patrick McNellis filed a motion requesting the court to allow him to dismiss his action without prejudice; and the court indicated an intention to sustain this motion but withheld action so that defendant, relator herein, could make application for prohibition.

The question for decision is whether, at a time when an order of consolidation of two or more actions under Rule 66.01(b), V.A.M.R., is in effect, a plaintiff in one of the actions has the right to dismiss without prejudice. Our conclusion is that he does not have the right to do so after the order of consolidation has been made and while it remains in effect. We consider this to be the logical result of the principles established by our decision in State ex rel. Rosen v. McLaughlin, Mo.Sup., 318 S.W.2d 181, 68 A.L.R.2d 1366, involving consolidation of personal injury cases of four members of one family, riding in the same automobile which was struck from the rear by another automobile.

Rule 66.01(b) is: 'When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.'

Rule 67.01, on which respondents rely, states: 'A plaintiff shall be allowed to dismiss his action without prejudice at any time before the same is finally submitted to the jury, or to the court siting as a jury, or to the court, and not afterward.'

These rules must be construed in harmony together. As to dismissal without prejudice, it has been said, 'We think the law is well settled that the right to dismiss a cause of action without prejudice under section 510.130, V.A.M.S., is not an absolute right.' Smith v. Taylor, Mo.App., 289 S.W.2d 134, 140; see also McClellan v. Sam Schwartz Pontiac, Inc., Mo.Sup., 338 S.W.2d 49. (Sec. 510.130, now Rule 67.01) Surely this should be true after cases have been consolidated. In the Rosen case, where the court making an order of consolidation of cases of four members of one family, included therein an order for completely separate trials in the cases it consolidated, we said: 'The sustaining of the motions for consolidation, consolidated the four cases into one action. The court having validly exercised its discretion with reference to the facts and circumstances presented by the motions for consolidation could not immediately thereafter and on the same state of facts proceed to exercise his discretion and nullify the order for consolidation by ordering separate trials of the four cases. * *...