Opinion
No. 23114
Decided December 23, 1931.
Dismissals — By plaintiff, without prejudice — Section 11586, General Code — Final submission contemplates submission on law and fact — Plaintiff may dismiss before briefs filed or limitation therefor expires.
1. A final submission of an action, within the purview of paragraph 1 of Section 11586, General Code, contemplates its submission upon both law and fact.
2. In an action tried to the court, where the evidence has been concluded and the court grants leave to counsel to file briefs within a stipulated time, the action is not finally submitted under the foregoing section until such briefs are filed or until the time for filing the same has expired. Prior to such time a plaintiff may dismiss his action without prejudice to a future action.
IN MANDAMUS.
This is an original action in mandamus, instituted in this court and presented upon the pleadings, consisting of the petition, the answers of the defendants, and the relator's reply to the answer of defendant Albert P. Schraner. The relator seeks a writ of mandamus in this court commanding the defendant Cook, as clerk of the court of common pleas of Cuyahoga county, Ohio, to receive from the relator, and file and place upon the records of the case hereinafter referred to, an entry tendered by the relator voluntarily dismissing said cause without prejudice to a new action.
As disclosed by the pleadings, the facts therein set forth are, in substance, as follows: In a certain cause numbered 33558 on the docket of said common pleas court, the relator, Strong, brought suit against Schraner and others for an accounting of profits, the assessment of damages, and for judgment on the amount found to be due. In that suit, the various defendants answered, none of the answers containing a counterclaim or set-off requiring affirmative relief. On June 24, 1931, that cause came on for hearing before Common Pleas Judge Skeel, without the intervention of a jury. The taking of testimony, having been adjourned from time to time, was finally completed on July 9, 1931, when the trial judge, preferring not to hear oral arguments, requested counsel to file briefs upon the facts and law of the case, giving the plaintiff one week and the defendants two weeks in which to file briefs therein. On July 17, 1931, no brief having been prepared by the relator's counsel, the relator filed with the clerk of court, Cook, a journal entry voluntarily dismissing his case without prejudice to a future action, and at the same time paid to the clerk the costs therein made. On the same day, relator's counsel appeared before another judge of said court, Judge Pearson, and made application to him for the approval of said entry so dismissing said cause without prejudice. Judge Pearson approved the entry with a condition that it should not be effective or journalized until approved by the trial judge, Skeel. The reply denies this, stating that Judge Pearson signed said entry without qualification and with the knowledge and approval of Skeel, the trial judge. Cook, the clerk, later withdrew the entry from the files, and destroyed it after the trial judge had declined and refused to order him to restore the entry to the files. Later, to wit, on July 20, 1931, the trial judge extended the time for filing relator's brief until Friday, July 24, 1931. Before the time of filing this brief had elapsed, to wit, on July 23, 1931, relator's counsel tendered another, a second, entry in the case, voluntarily dismissing his cause without prejudice to a new action. Cook, the clerk of court, refused to receive and file the second entry, which led to this action in mandamus seeking to compel him to file the entry of dismissal.
It is conceded that the trial judge neither expressed nor indicated his opinion upon the merits of the cause; the trial judge's refusal to approve the entry was based upon the legal conclusion that the cause had been finally submitted to him for decision.
Messrs. Fraser, Hiett, Wall Effler, for relator.
Mr. Ray T. Miller, prosecuting attorney, for defendants Thomas C. Cook and Lee E. Skeel.
Messrs. Mooney, Hahn, Loeser, Keough Beam, for defendant Albert P. Schraner.
The question here is whether there was a final submission to the court of common pleas of the cause pending before it. If there was not, the plaintiff could voluntarily dismiss his action without prejudice to a new action, under the following section of the General Code:
Section 11586. "An action may be dismissed without prejudice to a future action: 1. By the plaintiff, before its final submission to the jury, or to the court, when the trial is by the court." The succeeding subdivisions of that section provide for dismissal by the court, or by the plaintiff, in vacation. This dismissal was not sought during vacation. It is conceded that neither oral argument was heard nor briefs filed in the case; nor was there any indication made by the court as to what his decision might be.
Had not counsel for the relator, the plaintiff below, filed his brief within the time fixed by the court, it might well have been argued that the court might have considered the cause as having been submitted on July 16, 1931, when the time limit for the filing of plaintiff's brief had expired. But that date may be ignored since the trial judge, Skeel, on July 20, 1931, extended the time for filing plaintiff's brief until July 24, 1931. This action conclusively shows that Judge Skeel did not consider the case as having been finally submitted to him until such brief was filed. However, before the time for filing that brief had expired, viz., on July 23, 1931, plaintiff's counsel tendered an entry voluntarily dismissing his cause without prejudice, which entry the court refused to approve, and the clerk refused to file. Was the case in the common pleas court at that time finally submitted? Under our system of jurisprudence, questions of law to be determined by the trial court may be as important, or more so, than questions of fact, and counsel have a right to present their argument on both fact and law either orally or by brief before the trial court arrives at its decision. It is after that has been done that the case can be considered as having been finally submitted to the court.
In the case of Laub Baking Co. v. Middleton, 118 Ohio St. 106, at page 112, 160 N.E. 629, 631, this same statute being under consideration, the opinion states: "In various states, having similar provisions to our own, authorizing a dismissal of his case by the plaintiff, there has been a great diversity of authority, supporting or denying the right of dismissal. Many such cases are cited in the opinion of Price, C.J., in Turner v. Pope Motorcar Co. and Baker Motor Vehicle Co., 79 Ohio St. 153, 86 N.E. 651." In the Turner case and the Laub Baking Co. case, supra, this court announced the principle that after a question determinative of the case has been argued, and the court has announced its conclusion thereon, the time for voluntary dismissal of an action by the plaintiff has passed.
The record in the case at bar discloses that on July 20, 1931, the trial judge extended the time for filing plaintiff's brief until July 24, 1931, but that prior to the expiration of the time for filing that brief plaintiff's counsel filed his entry of dismissal, and paid the costs.
We are therefore of the opinion that under such circumstances the case had not been finally submitted to the trial court for its determination of both fact and law. While under the later subdivisions of Section 11586, General Code, above cited, the court has authority to dismiss the action without prejudice, the plaintiff under subdivision (1) had the right, under its express terms, to dismiss the action before its final submission. We recognize the fact that this method of procedure may be employed to harass a defendant, and may prolong expensive and annoying litigation. On the other hand, in some cases, it may be employed for the benefit of a plaintiff who finds himself presently unable to go forward with the litigation, and who seeks to preserve his just rights. This phase is discussed in the case of Houston's Admr. v. Thompson's Admr., 87 Mo. App., 63, at page 70. In practice the usual method of procedure is for plaintiff's counsel to present his motion to the court for a continuance, showing cause therefor. The statute is clear and unambiguous, and we are unable to construe it otherwise than to authorize the plaintiff to dismiss his action voluntarily before its final submission, and that its final submission contemplates its submission upon law and fact after argument. If a different procedural remedy should be supplied, it should be supplied by the Legislature rather than by the court.
There are many authorities variously construing the method of procedure under substantially similar statutes, but under dissimilar facts. Here we confine ourselves to the facts peculiar to this case, which are set forth in the pleadings. Of the cases touching this question, that of Crane v. Leclere, 204 Iowa 1037, 216 N.W. 622, is more exactly in point than any other. Section 11562 of the Iowa Code of 1924 is a statute similar to our own, and may be found in the reported case of Eclipse Lumber Co. v. City of Waukon, 204 Iowa 278, at page 283, 213 N.W. 804. In the Crane case, supra, the parties had introduced their evidence and rested, and counsel for both sides had been given ten days to file briefs; but on the day such action was taken, and without brief being filed, plaintiff moved to dismiss his action without prejudice, and this was sustained by the trial court. The Supreme Court of Iowa held that there was no final submission until the briefs were filed or until the time for filing had expired, and in the course of the opinion it was stated, at page 1042 of 204 Iowa, 216 N.W. 622, 624: "If the court had granted time for the attorneys to appear and argue the case orally, certainly there would have been no final submission of the case, and the plaintiff could voluntarily dismiss the same before the arrival of the time fixed. The effect of granting time to file briefs was that the case was not finally submitted for determination by the court until the court could have the briefs for the consideration of the matters before him, or until the expiration of the time granted for the filing of same. * * * The cause was only submitted in so far as the taking of evidence was concerned, but was open for what aid the parties could give the court as to the law applicable to the evidence which had been previously received. The stipulation that the defendant on its application is given ten days to file a brief negatives the claim of appellant that the case was finally submitted on that day. There can be but one final submission of the case."
We therefore hold that within the purview of Section 11586, General Code, a final submission to the court contemplates its submission upon both law and fact, and that where the evidence has been concluded and time given to counsel for future oral argument, or future filing of briefs, the cause is not finally submitted until such arguments are made or briefs are filed, or until such time limit for argument or the filing of briefs has expired. Prior to that time a plaintiff may dismiss his action without prejudice under the sanction of the Code provision herein referred to. It follows that, under the conceded facts, the relator is entitled to the writ prayed for.
Writ allowed.
MARSHALL, C.J., MATTHIAS, DAY, ALLEN, KINKADE and ROBINSON, JJ., concur.