Summary
In Duty, the appellee filed a motion to dismiss James Duty's complaint, and James Duty appeared at the hearing and asked to take a nonsuit under Rule 41(a), which provides that "an action may be dismissed without prejudice to a future action by the plaintiff before final submission of the case[.]"
Summary of this case from Unruh v. Five Star Painting Servs.Opinion
No. 88-291
Opinion delivered April 24, 1989 [Rehearing denied May 20, 1989.]
Purtle, J., would grant rehearing.
1. PRETRIAL PROCEDURE — THE PRIVILEGE TO TAKE A NONSUIT BEFORE FINAL SUBMISSION OF A CASE IS ABSOLUTE. — The privilege to take a nonsuit before final submission of a case is absolute. 2. PRETRIAL PROCEDURE — WHERE ARGUMENT WAS NOT YET CLOSED, CASE HAD NOT BEEN FINALLY SUBMITTED. — Where the case had come to a hearing but the argument was not yet closed, the case had not been finally submitted. 3. TRIAL — LAYMAN PLAINTIFF COULD NOT REPRESENT OTHER PLAINTIFF. — Where one laymen plaintiff appeared pro se at a hearing and requested a nonsuit, but the other pro se plaintiff did not appear at the hearing or make a motion for a nonsuit, the plaintiff requesting the nonsuit could not represent the plaintiff who did not appear, and the dismissal with prejudice must stand as to her.
Appeal from Washington Circuit Court, Second Division; Mahlon Gibson, Judge; affirmed in part, reversed and remanded in part.
James A. Duty and Opal Duty, for appellants.
Bassett Law Firm, by: Curtis L. Nebben, for appellee.
The appellants' lawsuit was dismissed because they refused to comply with an order compelling discovery. We affirm the court's action dismissing the appellant Opal Duty with prejudice, but we reverse and remand to allow James Duty to take a nonsuit.
James Duty and his mother, Opal, filed suit against Barry Watkins, an attorney. Watkins filed a motion to dismiss the complaint for failure to answer discovery requests. Since Judge Kim Smith had disqualified himself in the case, the motion to dismiss was heard by Judge Mahlon Gibson.
James Duty appeared pro se at the hearing and asked to take a nonsuit under ARCP Rule 41(a). The appellee claimed his motion to dismiss for failure to respond to discovery should be ruled on first. The trial judge agreed and granted the appellee's motion to dismiss with prejudice.
[1, 2] James Duty's request for a nonsuit should have been granted. The rule is clear that the privilege to take a nonsuit before final submission of a case is absolute. Haller v. Haller, 234 Ark. 984, 356 S.W.2d 9 (1962) (interpreting Ark. Stat. Ann. 27-1405 [Repl. 1962], virtually identical to Rule 41 [a]). This case had not been finally submitted because, although the case had come to a hearing, the argument was not yet closed. See Mutual Benefit Health Accident Assoc. v. Tilley, 174 Ark. 932, 298 S.W. 215 (1927).
Opal Duty did not appear at the hearing and made no motion for a nonsuit. James, as a layman, could not represent her, so the dismissal with prejudice stands as to her.
Since we are reversing to allow a nonsuit, we need not address the question of whether Judge Gibson should have disqualified on his own motion.
Affirmed in part, reversed and remanded in part.