Opinion op the Court by
Reversing.
William Beadles died in Paducah, in the year 1893, the owner of a considerable estate, which he devised to his wife for life, with remainder to his two daughters, Ella Wilhelm and Mary Bains. The wife died some years after her husband and after her death, Mrs. Wil
By section 371 of the Code, an action may be dismissed without prejudice to a future action by the plaintiff before a final submission of the case to the jury or to the court, if the trial is by the court. After a final submission of the case, the plaintiff can not as a matter of right dismiss the action without prejudice. But although the case has been submitted to the court, the court may in its discretion, allow the submission to be set' aside, and the action dismissed without prejudice. (Williamson v. American Reserve Bond Co., 140 Ky., 215.) In the case cited it was held that the court did not abuse his discretion in allowing the submission set aside and the action dismissed without prejudice, where the submission was premature. In the case at bar no process had been served on the infants. They had not been
The answer not only put in issue the facts entitling the plaintiff to recover one-half of tfie property, but it alleged facts showing that the defendants were the owners of the whole property. It also alleged facts assailing the division which had been made between Mrs. Wilhelm and Mrs. Bains.
As the infants were not properly before the court, had no guardian and no report had been filed by the guardian ad litem it was not proper that their counterclaim should be dismissed absolutely. When the plaintiff was allowed to dismiss his action without prejudice, the counterclaim of the infants should also have been dismissed without prejudice, so that the rights of the parties might be settled in the new action, and that neither should.be prejudiced by the premature submission of this case.
Judgment reversed and cause remanded for a judgment dismissing the counterclaim without prejudice.