179 N.E. 352 | Ohio | 1931
The question here is whether there was a final submission to the court of common pleas of the cause pending before it. If there was not, the plaintiff could voluntarily dismiss his action without prejudice to a new action, under the following section of the General Code:
Section 11586. "An action may be dismissed without prejudice to a future action: 1. By the plaintiff, before its final submission to the jury, or to the court, when the trial is by the court." The succeeding subdivisions of that section provide for dismissal by the court, or by the plaintiff, in vacation. This dismissal was not sought during vacation. It is conceded that neither oral argument was heard *481 nor briefs filed in the case; nor was there any indication made by the court as to what his decision might be.
Had not counsel for the relator, the plaintiff below, filed his brief within the time fixed by the court, it might well have been argued that the court might have considered the cause as having been submitted on July 16, 1931, when the time limit for the filing of plaintiff's brief had expired. But that date may be ignored since the trial judge, Skeel, on July 20, 1931, extended the time for filing plaintiff's brief until July 24, 1931. This action conclusively shows that Judge Skeel did not consider the case as having been finally submitted to him until such brief was filed. However, before the time for filing that brief had expired, viz., on July 23, 1931, plaintiff's counsel tendered an entry voluntarily dismissing his cause without prejudice, which entry the court refused to approve, and the clerk refused to file. Was the case in the common pleas court at that time finally submitted? Under our system of jurisprudence, questions of law to be determined by the trial court may be as important, or more so, than questions of fact, and counsel have a right to present their argument on both fact and law either orally or by brief before the trial court arrives at its decision. It is after that has been done that the case can be considered as having been finally submitted to the court.
In the case of Laub Baking Co. v. Middleton,
The record in the case at bar discloses that on July 20, 1931, the trial judge extended the time for filing plaintiff's brief until July 24, 1931, but that prior to the expiration of the time for filing that brief plaintiff's counsel filed his entry of dismissal, and paid the costs.
We are therefore of the opinion that under such circumstances the case had not been finally submitted to the trial court for its determination of both fact and law. While under the later subdivisions of Section 11586, General Code, above cited, the court has authority to dismiss the action without prejudice, the plaintiff under subdivision (1) had the right, under its express terms, to dismiss the action before its final submission. We recognize the fact that this method of procedure may be employed to harass a defendant, and may prolong expensive and annoying litigation. On the other hand, in some cases, it may be employed for the benefit of a plaintiff who finds himself presently unable to go forward with the litigation, and who seeks to preserve his just rights. This phase is discussed in the case of Houston's Admr. v. Thompson'sAdmr.,
There are many authorities variously construing the method of procedure under substantially similar statutes, but under dissimilar facts. Here we confine ourselves to the facts peculiar to this case, which are set forth in the pleadings. Of the cases touching this question, that of Crane v. Leclere,
We therefore hold that within the purview of Section 11586, General Code, a final submission to the court contemplates its submission upon both law and fact, and that where the evidence has been concluded and time given to counsel for future oral argument, or future filing of briefs, the cause is not finally submitted until such arguments are made or briefs are filed, or until such time limit for argument or the filing of briefs has expired. Prior to that time a plaintiff may dismiss his action without prejudice under the sanction of the Code provision herein referred to. It follows that, under the conceded facts, the relator is entitled to the writ prayed for.
Writ allowed.
MARSHALL, C.J., MATTHIAS, DAY, ALLEN, KINKADE and ROBINSON, JJ., concur. *485