Opinion

Brown v. St. Paul Mercury Insurance

  • 300 Ark. 241
  • 778 S.W.2d 610
  • 1989 Ark. LEXIS 477
Court
Supreme Court of Arkansas
Filed
Oct 30, 1989
Status
Published
Author
Purtle
On the bench
Purtle
Cited by
7 cases
Authority
More cited than 85.9%

The opinion

John I. Purtle, Justice. The trial court granted a summary judgment in favor of the appellee. We agree with the appellants’ argument for reversal that the court should have allowed a nonsuit.

This is the second appeal in this case. In Brown v. St. Paul Mercury Ins. Co., 292 Ark. 558 , 732 S.W.2d 130 (1987), we reversed and remanded the case to the trial court on a point concerning the statute of limitations.

On April 26,1989, the appellee filed a motion to dismiss. The appellants’ attorney mailed the trial judge a letter on May 4, 1989, which states in part: “In light of the defendant’s recent motion to dismiss, the plaintiffs would like to take voluntary dismissal without prejudice before a ruling by the court on the motion to dismiss.” The attorney included a draft of an order of dismissal, which the judge never signed. An amended order of dismissal stated: “That Plaintiff moved for alternative relief by Order of Dismissal without prejudice and this is denied.”

Arkansas Rules of Civil Procedure, Rule 41(a), in part states: “[A]n action may be dismissed without prejudice to a future action by the plaintiff before the final submission of the case to the jury, or to the court where the trial is by the court____”

A similar issue has been decided by this court in Duty v. Watkins, 298 Ark. 437 , 768 S.W.2d 526 (1989), where we stated: “James Duty’s request for a nonsuit should have been granted. The rule is clear that the privilege to take a nonsuit before final submission of a case is absolute.” This matter is therefore reversed and remanded to the trial court with directions to grant the appellants’ motion for the nonsuit without prejudice.

Reversed.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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