There can be no doubt of the authority of Mr. Rerat, plaintiff's counsel who brought the action, to move for a dismissal thereof in open court when defendants were present ready for trial. Rogers v. Greenwood, 14 Minn. 256 (333). Such dismissal entered on the minutes was effective to terminate the action without formal entry of judgment. Mason Minn. St. 1927, §§ 5690, 9322. The dismissal being under § 9322(1) and in open court with defendants' attorneys there, no notice of the dismissal was required to be served upon them. Of course plaintiff had the right to move the court to vacate the dismissal and for reinstatement of the action on the calendar, as she did by another attorney, Mr. Dahl. Macknick v. Switchmen's Union, 131 Minn. 246" court="Minn." date_filed="1915-12-03" href="https://app.midpage.ai/document/macknick-v-switchmens-union-7977844?utm_source=webapp" opinion_id="7977844">131 Minn. 246, 154 N.W. 1099" court="Minn." date_filed="1915-12-03" href="https://app.midpage.ai/document/macknick-v-switchmens-union-7977844?utm_source=webapp" opinion_id="7977844">154 N.W. 1099. The order denying that motion was appealable. Defendants set the time running for taking an appeal therefrom by the service of notice of the filing of the order on Mr. Dahl on March 27, 1937. When 30 days from that date expired without an appeal being taken, the action was ended as to defendants Mrs. Fawcett and Mrs. Bock, and it was not again open to plaintiff to apply to the discretion of the court to vacate the dismissal on the ground of Mr. Rerat's culpable wrong, or on account of any want of diligence of Mr. Dahl. The action and also the cause of action as to defendant Roscoe Fawcett ended with his death June 30, 1936.
We think the only action of the court below open to attack in this appeal is the order of September 22, 1938, discharging the order to show cause why the dismissal of October 19, 1936, should not be vacated. It is not necessary to decide whether or not the court rightly concluded that jurisdiction of defendants Mrs. Fawcett and Mrs. Bock was not acquired by the service of the order to show cause on their former attorney, Mr. O'Connell, long after his relation as their attorney had ended, for we are of the opinion that the order of March 24, 1937, standing as a finality and unassailable,
on this appeal, any attempt, on the showing made upon the order to show cause, to vacate the dismissal would be an abuse of judicial discretion.
The order of September 22, 1938, and judgment are affirmed.
MR. JUSTICE HILTON, incapacitated by illness, took no part.