June 23, 1934.
DISMISSAL AND NONSUIT: Voluntary — Dismissal before Court Sustains Motion. When, at the close of plaintiff's testimony, the court orally states that defendant's motion for a directed verdict would be sustained, and plaintiff thereupon announces in open court his dismissal of the action without prejudice, the court may treat plaintiff's announcement as a motion to dismiss without prejudice and sustain such motion over the objection of defendant.
Appeal from Polk District Court. — JOHN J. HALLORAN, Judge.
Appeal from an order of the district court dismissing the case without prejudice on plaintiff's motion. — Affirmed.
Putnam, Putnam, Langdon Fillmore, for appellant.
A.D. Pugh, for appellee.
A jury was duly impaneled for the trial of this case in the district court. At the close of plaintiff's case the defendant moved for a directed verdict. The trial court, being satisfied that the motion should be sustained, declined to hear argument upon it, and announced that the motion would be sustained. Upon such announcement being orally made by the court, counsel for plaintiff immediately announced in open court his dismissal of the case without prejudice. The trial court construed this announcement to be a motion to dismiss, and entered an order dismissing the case without prejudice at plaintiff's costs. From this order the defendant appeals.
The exact question presented by this appeal came before this court in Pisel v. Incorporated Town of Mt. Vernon, 99 N.W. 568. In that case this court sustained a dismissal made under the circumstances disclosed by the record in this case. Following the rule announced in that case, the order appealed from is affirmed. A motion to dismiss the appeal was ordered submitted with the case. The motion is overruled.
All Justices concur.