Carney Bros. v. Reed

117 Iowa 508 | Iowa | 1902

Bishop, J. —

2 The right to dismiss an action once brought as regulated by section 3764 of the Code. Subdivision 1 of ■said section alone has application to the case before us. It is therein provided, in substance, that the plaintiff may dismiss his action before the final submission of the case to the court, when the trial is by the court. By the succeeding section, 3765, it is provided that in all •other cases upon the trial of the action the decision must be upon the merits. In McArthur v. Schultz, 78 Iowa, 364, we held that section 3764, by construction, denies the right to dismiss after a case has been submitted to the •court for decision. To the same effect is Dunn v. Wolf, 81 Iowa, 688. In the case before us, the action having been tried and submitted, and the court having announced the conclusions reached therefrom, and the terms of the judgment. to. be entered, it was manifestly erroneous to permit the dismissal.

3 II. It is urged by appellees, however, that the record doe.s not show any judgment against appellant,, and for; that reason he has no right of appeal. A motion to dismiss the appeal for the same reason is also made. ■ Reliance is placed upon Boyce v. Railway Co., 63 Iowa, 70, and other cases wherein it is held that a judgv ment or decree against appellant is indispensable to his right of appeal. That is true under the provisions of section 4100 of the. Code. If the appeal is taken from a. judgment of an inferior court,- the record must show that in fact a judgment adverse to the appellant was entered.-But by section 4101 of the Code it is provided that an ap-, peal may also be taken to this court from..an order made/ affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment from which an appeal might be taken. The appellant here had the right in the court below to..have final disposition of the action upon its merits, as far as that court was concerned. Such disposition could be made, only by a judgment either in his favor, or adverse to him. If the latter, then an appeal might be taken.

The motion to dismiss is therefore overruled, and the. cause is reversed and remanded to the district court with directions to enter judgment in favor of appellant in accordance with the views above expressed. — Reversed.