Opinion
Argued February 4, ____.
Affirmed March 12, 1969.
IN BANC
Appeal from Circuit Court, Klamath County, DONALD A.W. PIPER, Judge.
AFFIRMED.
John E. Ferris, Medford, argued the cause for appellant. With him on the briefs were Collins Redden, Medford and Ort W. Goakey, Klamath Falls.
Stanley C. Jones, Medford, argued the cause for respondent. With him on the brief were J. Anthony Giacomini and Richard T. Flynn, Klamath Falls.
Before PERRY, Chief Justice, and McALLISTER, SLOAN, O'CONNELL, GOODWIN, DENECKE and HOLMAN, Justices.
In Haworth v. Ruckman, 1968, 249 Or. 28, 436 P.2d 733, we held that ORS 12.220 permits the refiling of an action within one year following a dismissal by non-suit only when the non-suit is granted after the beginning of a trial of an issue of fact. In the instant case plaintiff took a voluntary non-suit before the trial started. When he refiled the case it was dismissed because of the statute of limitations. He appeals that decision. He attempts to distinguish the Haworth decision on the basis that here the trial court suggested he ask for a voluntary non-suit when plaintiff had requested a continuance. The request for the continuance and the judge's suggestion were by telephone conversation and, of course, ex parte. Plaintiff had no right to rely on the judge to preserve his case against the running of that statute of limitations. It was the duty of the attorney to ascertain the consequences of the voluntary non-suit.
In the Haworth case we said that the reason for limiting ORS 12.220 was that a non-suit before trial may be taken by plaintiff as a matter of right and is, therefore, voluntary and not a dismissal, and that a non-suit after the trial has begun is a judgment of the court and is a dismissal in the context of ORS 12.220. The added distinction suggested by plaintiff is not valid.
Affirmed.