This is an appeal from a judgment dismissing the action without prejudice after denial of defendant Van Loon’s motion for judgment notwithstanding disagreement of the jury.
Plaintiff sued to recover for personal injuries. The jury disagreed and was discharged. Defendant Yan Loon then moved under Minn. St. 1941, § 605.06 (Mason St. 1927, § 9495), for judgment notwithstanding the disagreement of the jury. Prior to hearing of the motion plaintiff еntered a voluntary dismissal, of which he gave due notice to defendants. Defendant Van Loon objected to the dismissal. After denial of his motion for judgment non obstante, defendant Van Loon procured an order dismissing the action without prejudice, cаused judgment of dismissal to be entered thereon, and appealed from the judgment.
Plaintiff moves to dismiss the appeal upon the ground that dismissal of the action below is authorized under § 546.39(1), (§ 9322[1]) as one “before the trial begins.” Defendant Van Loоn contends that the dismissal is unauthorized as one before trial, because it occurred after a trial and disagreеment of the jury, and because in that situation he had the right under § 605.06 (§ 9495) to have his motion determined, notwithstanding any attempt to dismiss the аction and have the determination of the mo *168 tion, if adverse to him, reviewed on appeal from the judgment of dismissal subsequently entered.
Under § 546.39(1), (§ 9322[1]), a plaintiff has the right, except in certain cases not here material, voluntarily to dismiss an аction “before the trial begins.” A dismissal after a mistrial is “before the trial begins,” because a mistrial is in legal effect no-trial at all. After a mistrial the case stands as if there had been, no trial of any kind. In Phelps v. Winona & St. P. R. Co.
“When, at the close of thе testimony, any party to the action moves the court to direct a verdict in his favor, and such motion is denied, upon a subsequent motion that judgment be entered notwithstanding the verdict, or notwithstanding the jury has disagreed and been discharged, the court shall grant the same if the moving party was entitled to such directed verdict.”
In Johnson v. Burmeister,
“If the court grants the motion, the order is not appealable; but in that event a judgment may be entered upon the order, which, is appealable so far as the adverse party is conсerned. Where a. *169 verdict lias been returned and the motion for judgment notwithstanding is denied, the order is not appealable; but here also a judgment may be entered on the verdict and an appeal taken from the judgment in which the order may be reviewed. But where there is a disagreement and a motion for judgment notwithstanding is denied no judgment can be enterеd. So far as the court below is concerned the case stands as if never tried. There has been no determinatiоn of the cause of action on the merits so as to make the order appealable under G. S. 1923, § 9498(3)-the sectiоn specifying the appealable orders and judgments.”
Sections 546.39(1) and 605.06 (§§ 9322[1] and 9495) should be, as they have been, construed together. While the plaintiff has the right to dismiss under § 546.39(1), (§ 9322[1]), after award of a new trial, as we held in Phelps v. Winona & St. P. R. Co.
The condition, which the defendant’s right to move for judgment notwithstanding a disagreement of the jury imposes on the plaintiff’s right voluntarily to dismiss, may be removed. All that the statute intends is that the defendant should have an opportunity to move for judgment
non obstante.
When he has done that, he has еxhausted the right which the statute accords him. In the Floody case we held that the condition which the defendant’s right to aрpeal imposes on plaintiff’s right to dismiss after a new trial has been granted may be lost by the defendant’s non-action, that is, by failure to appeal during the time allowed therefor. We there said (
“Of course, if in such case [where a neAV triаl is granted] defendant should not, Avithin the time allowed therefor, appeal from *170 the order vacating the verdict, plаintiff conld, within the rule of the Phelps case, thereafter dismiss his action.”
Where the defendant acts and exercises his right, the purpose of the statute has been satisfied. In the instant case defendant exercised the right to move for judgment
non obstante.
By sо doing, the only condition upon plaintiff’s right to dismiss under § 546.39(1), (§ 9322[1]), was removed. As we said in Johnson v. Burmeister,
In answer to a further point raised by defendant that the denial of judgment
non obstante
is reviewable under § 605.09(1), (§ 9498[1]), as an intermediate ordеr on appeal from the judgment of dismissal “involving the merits or necessarily affecting the judgment appealed from,” wе hold that the review under such an appeal is confined to the proceedings which resulted in the judgment. Muellenberg v. Joblinski,
It appears that the sole object of the appeal is to obtain a review of the order denying the motion for judgment non obstante. Since that order cannot be reviewed on appeal from the judgment of dismissal, the appeal should be dismissed.
Appeal dismissed.