Boutin v. Andreas

161 Wis. 152 | Wis. | 1915

Marshall, J.

Did tbe court err in refusing to permit plaintiff to discontinue ?

Appellant’s counsel support tbe affirmative of tbe question stated upon tbe theory that a plaintiff, before submission of bis case, has an absolute right to dismiss without prejudice to trial of tbe issue on tbe counterclaim in case of there being one. Tbe law is otherwise as declared in State ex rel. Milwaukee v. Ludwig, 106 Wis. 226, 82 N. W. 158; Anderson v. Horlick’s M. M. Co. 137 Wis. 569, 119 N. W. 342. Earlier cases, such as McLeod v. Bertschy, 33 Wis. 176, to tbe effect that a plaintiff, as to bis own claim has an undoubted right to discontinue, are modified by tbe later ones bolding that tbe court may, in its discretion, refuse a request therefor, as in this case.

It must be kept in mind that while tbe term “dismissal” was used in this case, instead of discontinuance, it was a voluntary dismissal which was sought, a mere discontinuance, leaving tbe plaintiff free to again resort to a judicial remedy for tbe same redress as before. There is no practical difference between a voluntary dismissal and discontinuance. So, though in State ex rel. Milwaukee v. Ludwig and Anderson v. Horlick’s M. M. Co. tbe proceeding dealt with was called a discontinuance, it was identical with a voluntary dismissal as regards tbe after status of tbe parties.

TRe trial court Rad ample reason in tRis case for refusing to permit appellant, after Raving RrougRt respondents into court to withdraw Ris claim and preserve competency to vex tRem again and take up tRe time of tRe court Ry commencing another action. If parties Rave a real controversy which must Re settled by judicial interference and an issue is once duly made up in respect to tRe matter, tRe plaintiff sRould not be allowed to trifle witR judicial administrative facilities by discontinuing without cause. TRe court may well exercise its authority to compel Rim to proceed or take a dismissal which will terminate the matter so far as cognizable by courts.

It is said the claim that the secondary contract was in settlement of appellant’s claim upon the first contract was not a proper subject for litigation in this action because not pleaded. We perceive no merit in that. Respondents distinctly alleged it was agreed that performance of the secondary contract sRould extinguish the claim for damages. TRe failure to produce evidence of such claim by no means precluded them from proving the whole subject of the counterclaim and, not only recovering the amount due thereon, but putting at rest the adverse claim.

Lastly, it is suggested that the court erred in directing a verdict in respondents’ favor because the evidence did not establish their claim as to the amount due. TRe contrary seems plain. One of the defendants testified that the amount of material furnished under the contract was $468.44; that the time to be charged for was 391 hours; that plaintiff was to pay all freight and cartage bills, and that the balance due was $163.94. In the absence of evidence to the contrary there was nothing to do but find for the defendants as was done.

By the Court. — TRe judgment is affirmed.