Opinion
No. 28265.
October 18, 1941.
Appeal from a judgment of the superior court for Pacific county, O'Phelan, J., entered May 21, 1940, dismissing an action for an accounting, after a trial on the merits to the court. Affirmed, as modified.
Fred M. Bond, for appellants.
W.A. Ackerman, for respondents.
ON REHEARING.
Subsequent to the time the decision in this case was filed ( 8 Wn.2d 568, 113 P.2d 60), petition for rehearing was granted, and the case was thereafter heard En Banc.
In appellants' petition for rehearing, it was urged that the judgment of the trial court should be modified by providing for a dismissal of the action without prejudice. The superior court tried the case upon its merits and dismissed the action with prejudice.
The effect of our opinion holding that the complaint did not state a cause of action was to leave the parties in the same position as they were prior to the bringing of the action in the superior court. It is apparent that the judgment of dismissal should be without prejudice to the beginning of another action.
The original opinion is amended to read as follows:
"This case is remanded to the trial court, with instructions to dismiss the action without prejudice."