Opinion
No. 12,055.
Filed February 19, 1925.
DISMISSAL OF ACTION. — Plaintiff may dismiss action before finding of court is announced. — Under the express provisions of § 338 Burns 1914, § 333 R.S. 1881, in a trial by the court, the plaintiff may dismiss his action at any time before the finding of the court is announced, and it is reversible error for the court to deny plaintiff's motion to dismiss made before all the evidence is heard.
From Vanderburgh Superior Court; Edgar Durre, Judge.
Action by Charles Runau against Amelia Wheeler. From a judgment for defendant, the plaintiff appeals. Reversed.
Oscar Birch, for appellant.
Appellee has not favored us with a brief. It appears by appellant's brief that on March 6, 1924, at the trial of the cause, and before all the evidence was heard, appellant filed his motion to dismiss his action, which motion the court overruled, and thereafter, to wit: on March 7, 1924, found for appellee on appellant's complaint, and for appellant on appellee's counter-claim, and rendered judgment accordingly.
Error of the court in overruling appellant's motion to dismiss his action is the only error assigned.
Section 338 Burns 1914, § 333 R.S. 1881, expressly provides that the plaintiff may dismiss his action, when the trial is before the court, at any before the finding of the court is announced. Authorities in harmony with this statute are Board v. Becker (1880), 69 Ind. 468; Cohn v. Rumely (1881), 74 Ind. 120; Wainwright v. Roots Co. (1912), 176 Ind. 682, 97 N.E. 8; 1 Watson's Revision Works' Practice p. 792.
The judgment is reversed, with instructions to the court to set aside the judgment, and to sustain appellant's motion to dismiss his action.