39 Colo. 51 | Colo. | 1907
delivered the opinion of the court:
The plaintiff -in error began suit in the county court of Eagle county in replevin to recover possession of certain cattle. The defendants answered, and a replication was filed. Thereafter the plaintiff filed his motion to dismiss the cause at his costs. The court did not then pass upon the'motion. After the motion was filed, counsel for the defendant asked leave to amend the answer by adding thereto a demand for damages for the wrongful taking of the cattle under the writ of replevin. This motion was granted over plaintiff’s objection. The court then proceeded to hear the cause upon its merits, the plaintiff objecting thereto. Thereafter, the court granted the motion of plaintiff to dismiss, and rendered judgment against him and for the defendant, T. M. Alquist, on the claim for damages in the sum of $297.50. The plaintiff took the case by writ of error to the court of appeals. The defendants in error have not entered an appearance.
The case must be reversed. ' The plaintiff had the right to dismiss his cause, and the court should have entered an order dismissing it when the motion was filed. The Code, section 166, authorizes the dismissal by a plaintiff when no counter-claim has been made. No counter-claim having been made, the plaintiff had a right to dismiss the action.
The judgment is reversed, with directions to the court to dismiss the action. Reversed.
Mr; Justice Campbell and Mr. Justice Maxwell concur.
