Hunsden v. Churchill

20 Minn. 408 | Minn. | 1874

By the Court.

Berry, J.

The modes in which an action may be dismissed in the district courts of this state, are prescribed by sec. 242, chap. 66, Gen. Stat., by which, also, “ all other modes of dismissing an action, by non-suit or otherwise, are abolished.” A discontinuance being but a species of dismissal, (in the eye of the statute,) it follows that a mere submission to arbitration, though followed by an award, is not here a discontinuance of an action, since it is not one of the prescribed modes of dismissal.

We are referred to several adjudged cases in which a different rule is laid down; but no statutory provisions like ours exist in tbe jurisdictions in wbicb they were determined, so far as we have been able to discover.

It is proper further to observe that the conduct of defendant’s counsel, after the alleged arbitration and award, in consenting to two continuances of this action, in stipulating for a reference thereof, in interposing a supplemental answer, and in going to trial before the referee, is inconsistent with the idea that the action had been extinguished by a discontinuance.

The other questions argued by the plaintiff’s counsel are not properly before us at this stage of the case.

Judgment reversed.