Reynolds v. Vidor

YORK, J. The instant action is one for damage to real property occasioned by the alleged failure of a bulkhead and the consequent deposit upon plaintiff’s land of silt and debris which was carried thereupon from the property of defendant Vidor by the heavy rains of March, 1938.

It appears from the record herein that upon the completion of the trial and oral argument on March 1, 1939, the cause was submitted and briefs were filed by both parties, and on June 5th the court ordered judgment for defendants. On June 9th, pursuant to notice of motion duly filed and served by plaintiff upon opposing counsel, the trial court made an order vacating and setting aside the submission of March 1st, and set the cause down for argument on June 28, 1939, upon the question of “act of God”. On June 12th, counsel for defendants served and filed their affidavit in opposition to such motion. On June 26th, two days prior to the day set for such further argument, plaintiff substituted attorneys Davis and Thorne in the place and stead of counsel who represented her during the trial, and served notice thereof on defendants. On the same day, i. e., June 26th, the newly substituted counsel filed with the clerk of the court a formal dismissal of the cause without prejudice, and telephoned defendants’ counsel of such action. On the day set for the argument on the question of “act of God”, neither plaintiff nor her counsel appeared, whereupon the court made its order setting aside the order of June 9th (vacating the order of submission and reopening the cause for argument) and “re-entered judgment for defendants in accordance with the order of June 5th.”

Thereafter, on July 6, 1939, upon motion of defendants, the court vacated and struck from the files the dismissal filed by plaintiff on June 26th and again entered judgment in favor of defendants.

[687]Plaintiff prosecutes this appeal from the judgment of July 6, 1939, contending:

“1. A party may dismiss his actions without prejudice at any time before final submission for judgment of the trial court, there being no cross-demand of defendant, and such trial court thereby loses jurisdiction.

“2. A trial court setting aside a dismissal entered by plaintiff before final submission acts beyond its jurisdiction.

“3. Act of God to be a defense must be without human intervention.