This is an original action to prohibit the trial court from continuing jurisdiction in a cause pending therein numbered 15964, entitled Bert Nightenhelser, and Julius Ballard v.Allis-Chalmers Manufacturing Company, a corporation, Charles J.Scranton, C.E. Frudden, and Earl Nevin, after the relator, Allis-Chalmers Manufacturing Company, a corporation organized under the laws and a citizen of the State of Delaware, had filed a verified petition and bond in the penal sum of $1,000 for the removal of said cause to the United States District Court for the Southern District of Indiana, Indianapolis Division. Immediately thereafter said relators filed a copy of said petition and bond with the clerk of the Boone Circuit Court, and gave notice of such removal to counsel for the plaintiffs, pursuant to § 1446, Title 28, U.S. Code [Public Law 773, — 80th Congress, Chapter 646 — 2nd Session, Effective Sept. 1, 1948].
Plaintiffs' first paragraph of second amended complaint charged the defendants with fraud in obtaining their ideas, inventions, plans, drawings and specifications for new types of a corn picker and rotary cultivator. The second paragraph alleged a breach of contract to pay the reasonable value for said property, and *330 each paragraph demanded damages in the sum of $1,000,000. The case was being tried by a jury, and before argument, and while the instructions were being indicated by the trial court, the plaintiffs on March 9, 1949, moved the court "that said cause be dismissed as to the defendants Charles J. Scranton and C.E. Frudden," which motion was at said time sustained by the court. No jurisdiction had even been obtained of the defendant Earl Nevin, but defendant Charles J. Scranton, a resident of Indiana, had been duly served with summons, and the defendant C.E. Frudden, who was a nonresident of Indiana, had voluntarily appeared by counsel, so that upon dismissal the only remaining defendant in the trial court was the nonresident corporation, Allis-Chalmers Manufacturing Company.
At the time the plaintiffs voluntarily moved dismissal on March 9th, counsel for the relators stated he was intending to examine the law to determine whether or not removal was proper. The steps for removal had all been completed the following day by 10:30 o'clock A.M., and the morning of said day counsel for the plaintiffs orally moved the court to set aside the ruling on the motion to dismiss, and for leave to withdraw said motion, which counsel for plaintiffs followed by filing a written motion to set aside the ruling on the motion to dismiss, and to withdraw the motion to dismiss, which motion was sustained by the court, and plaintiffs' leave to withdraw the motion to dismiss was granted. Thereupon the court continued the cause until March 16, 1949, at 9:00 o'clock A.M., but indicated it was retaining jurisdiction of the cause.
The first paragraph of respondents' verified return takes the position that the question of removal was one exclusively for the federal courts to decide, and that until the cause is declared removable the Boone Circuit *331 Court is not without jurisdiction. However, Article 6 of the federal Constitution states that constitution, "and the laws of the United States which shall be made in pursuance thereof" are "the supreme law of the land," and the judges and courts of every state are "bound thereby." The General Assembly of Indiana, following this mandate, has declared "The law governing that state . . . to be:
"First. The Constitution of the United States and of this state.
"Second. All statutes of the general assembly of the state in force, and not inconsistent with such constitutions.
"Third. All statutes of the United States in force, and relating to subjects over which congress has power to legislate for the states, and not inconsistent with the Constitution of the United States." Section 1-101, Burns' 1946 Replacement (1 R.S. 1852, ch. 61, § 1, p. 351).
Under these clear provisions we are bound to decide the issues presented by this original action even though our determination of the law involved may be subject to correction on the 1. federal questions by the subsequent decisions of the federal courts.
The effect of a voluntary dismissal has been well considered by the Ohio courts. In Apple v. Ganson (1947), 49 O.L.A. 547, 550, 76 N.E.2d 736, 738, the Court of Appeals of Ohio said:
"`It is the view of this court that when the plaintiff by his voluntary act dismissed his proceedings without prejudice and an entry thereof was made upon the court's docket that the cause ended in that court and that no further jurisdiction was reposed in that court with reference to a disposition of that case. We well recognize the right of a court to correct its journal entries within term, but we think *332 that the statute under which that right exists is dependent upon the matter of the court having jurisdiction of that cause and the cause having been dismissed the court could make no further order in that case and it is therefore our view that the trial court improperly sustained the motion to vacate its entry of dismissal and reinstate the case.'
"It is said in Siegfried v. New York, L.E. W.R. Co.,
`"A dismissal by plaintiff involves no action of the court; it is a voluntary withdrawal of his case." The matter then stands as if the case had never been commenced.'"1
In Illinois, where the practice recognized the right of a plaintiff to file a voluntary dismissal with leave by the court at the time, to move to set it aside and reinstate the cause, the Supreme Court in Weisguth v. Supreme Tribe of Ben Hur (1916),
". . . In involuntary nonsuits the court may, in its discretion, set aside the order of dismissal and reinstate the cause. In case of a voluntary nonsuit upon motion of a plaintiff the court has no power to set aside the order of dismissal and reinstate the cause, unless at the time the nonsuit is taken leave is given the plaintiff to move to set it aside. Barnes v. Barber, 1 Gilman, 401; Lombard v. Cheever, 3 Gilman, 469. The reason for this rule is apparent. If a plaintiff by his deliberate and voluntary act secures the dismissal of his suit, he must be held to have anticipated the effect and *333 necessary results of this action, and should not be restored to the position and the rights which he voluntarily abandoned. Having taken a nonsuit, his only recourse is to begin his action anew."
See also People ex rel. Waite v. Bristow (1945),
By § 2-901, Burns' 1946 Replacement, (Acts 1881 [Spec. Sess.], ch. 38, § 433, p. 240), "An action may be dismissed without prejudice — First, by the plaintiff, before the jury 2-5. retires . . ." This was a dismissal in term time, and the statute does not require any postponement for the full taking effect of the dismissal as would have been the case had the dismissal been filed in vacation under § 2-902, Burns' 1946 Replacement. The plaintiff has the absolute right to dismiss under § 2-901, Burns' 1946 Replacement, supra, at any time before the jury retires or the finding of the court is announced.Moore-Mansfield Constr. Co. v. Marion, B. E. Trac. Co.
(1913),
The cause first became removable when it was dismissed as to the resident defendants. Powers v. Chesapeake Ohio Railway Co. (1898),
It is true as contended by the respondents that this court has no jurisdiction to finally determine whether *335 or not the case was in fact removable. But we are bound by 9. the federal statute on removal, and until the federal courts judicially determine that the state court retains jurisdiction after a case involving these facts has been removed, we are constrained to hold under the issues here presented that the state court lost jurisdiction to proceed further after the removal was effected, and would not resume jurisdiction unless and until the cause be remanded to the state court.
The temporary writ is made permanent, with leave granted to move to vacate the writ when and if the cause be remanded to the trial court.
NOTE. — Reported in