Burnett v. Burnett

MOORE, P. J.

Appeal from an order dismissing with prejudice an action for divorce.

[806]

Appellant having sued on the ground of mental cruelty, called respondent as witness, and after the latter had testified and certain documentary evidence had been received, rested. Appellant having testified on behalf of respondent and sundry exhibits having been introduced by the latter the trial was continued to the next day. After a discussion in chambers the following colloquy took place in open court:

“Mr. Oster: At this time, if it please the court, plaintiff moves to dismiss the action without prejudice.

“Mr. Welpton : The defendant will resist the motion to dismiss, and asks that the case proceed to trial, under the provisions of section 581 of the Code of Civil Procedure, as amended in 1947.

“The Court: Very well, the matter is dismissed, with prejudice. ’ ’

The sole question for decision is whether the court may dismiss an action with prejudice, after plaintiff’s motion to dismiss without prejudice. The answer to such question can be determined only by the correct construction of section 581 of the Code of Civil Procedure as amended in 1947

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and its application to the facts at bar.

Subdivision 1 of section 581 limits a dismissal by plaintiff to “any time before actual commencement of the trial.” Since the trial in the instant case had commenced by the introduction of his proof by appellant, subdivision 1 is inapplicable to the action. Neither do subdivisions 2 and 3 apply since respondent neither consented to nor asked for a dismissal.

[807]

Appellant having moved to dismiss without prejudice, the first sentence of subdivision 5 does not apply by reason of the fact that it authorizes appellant’s motion for a dismissal with prejudice. The final sentence of subdivision 5 affords appellant no basis for his motion. It confers discretionary power upon the court to dismiss without prejudice but only in two instances: (1) by consent of all the parties, which is clearly not given here, arid (2) “by order of the court on showing of just cause therefor.” Unless a just cause was established for dismissal without prejudice that portion of subdivision 5 is inapplicable.