109 So. 8 | Miss. | 1926
"This cause came on to be heard on motion to dismiss said cause, the motion is sustained, and cause dismissed without prejudice, with cost on the plaintiff, for which let execution issue."
The second suit, the one here on appeal, was begun within one year after the dismissal of the first. The grounds on which counsel for the appellant contend that this second suit can be maintained are: *600
First, it is within the provisions of section 3116, Code of 1906 (Hemingway's Code, section 2480), which is as follows:
"If in any action, duly commenced within the time allowed, the writ shall be abated, or the action otherwise avoided or defeated, by the death of any party thereto, or for any matter of form, or if, after verdict for the plaintiff, the judgment shall be arrested, or if a judgment for the plaintiff shall be reversed on appeal, the plaintiff may commence a new action for the same cause, at any time within one year after the abatement or other determination of the original suit, or after reversal of the judgment therein." . . .
Second, that the appellant's right to institute another suit was expressly reserved to it by the provision in the order by which the first suit was dismissed that the dismissal should be "without prejudice."
When the case was tried by this court, both of these contentions were overruled, and counsel for the appellant now suggests that we erred in so doing.
The motion on which the first suit was dismissed does not appear in the record, and there is nothing in the order of dismissal indicating that it was a mere abatement of the action, or that the dismissal was "for any matter of form," but in an agreement of counsel the dismissal is referred to as a nonsuit. The statute invoked, therefore, can afford the appellant no relief.
The only effect of the words "without prejudice" in the order by which the first suit was dismissed is to prevent the dismissal of that suit in operating as a bar to any new suit which plaintiff might therefore desire to bring on the same cause of action. 34 Cyc. 894; Cole v. Fagan,
The cases of Hawkins v. Scottish Union National InsuranceCo.,
The case of La Follette Coal, Iron Ry. Co. v. Minton,
And the pertinent provision in the statute on which the second was decided is:
"If the plaintiff fail in such action otherwise than upon the merits." Revised Statutes of Kansas Ann. 60-311.
A nonsuit or a dismissal without prejudice is, of course, within both of these statutes, but under our statute the dismissal must be for a matter of form, and, as hereinbefore stated, it does not appear that the appellant's prior suit was dismissed for that reason.
The request of counsel that the case be remanded to the docket for oral argument must be denied.
Suggestion of error will be overruled.
Overruled. *602