(Caption.)

MOTION FOR CONTINUANCE

Comes now the plaintiff, A. B., and moves the court to grant him a continuance of the above-entitled cause until the next term of this court, for the reason that (set out reasons).

And in support of this motion, the affidavit of

hereto, marked Exhibit A, and made a part hereof.

is attached

A. B., being first duly sworn, upon oath says:

That he is the plaintiff in this action; that C. D. is a material witness for this plaintiff, without the benefit of whose testimony deponent cannot safely proceed to the trial of said action; that said. witness is absent; that he has been duly subpoenaed; that he resides in the county where the above case is pending; that his testimony is material; that such witness is not absent by the permission, directly or indirectly, of this applicant; that he expects that he will be able to procure the testimony of such witness at the next term of this court; that this application for a continuance is not made for the purpose of delay, but to enable him to procure the testimony of such absent witness; that there is no other witness by whom he can prove the same facts; that deponent expects to prove by said absent witness the following facts: (Stating same.) (Set forth any other material facts as to cause of absence of witness, etc.)

hearing on the motion of plaintiff for a continuance of the aboveentitled cause until the next term of this court, said cause having

been heretofore regularly set for trial on this date, the plaintiff appearing by his attorney X. Y., and the defendant appearing by his attorney, G. H., and the court, upon consideration of said motion. and affidavits presented in support thereof and oral testimony heard, and being fully advised in the premises, finds that said plaintiff would be prevented from having a fair and impartial trial on account of the absence of material evidence which he has used due diligence to obtain, and that it is probable that said evidence may be produced by plaintiff at the next term of this court; and the said defendant, having refused to consent that on the trial the facts alleged in the affidavit of plaintiff for a continuance might be read and treated as the deposition of the absent witness.

It is therefore by the court ordered that this cause be and the same is hereby continued to the next term of this court, and that the costs of such continuance shall be taxed against said plaintiff.

§ 524. Time of making

- Judge.

An application for continuance should be made without delay. Where, by a rule of court, a party desiring the continuance of a cause is required to make his application therefor on the first day of the term, or show cause why he has not done so, it is not error for the court to overrule such an application made during the term, if no such showing is made.1o

The denial of a continuance was not an abuse of discretion, where the cause had been continued three times on practically the same grounds and it did not appear that a further continuance would be to any advantage.11

§ 526. Objections-Waiver

By withdrawing his answer and demurring to the petition and electing to stand on his demurrer after the overruling thereof,

39 In an action by an administrator, there was no abuse of discretion in refusing a postponement of the trial, in order that defendant might have a hearing upon his application to revoke the letters of administration; the application not having been filed in the probate court until the day of the trial, although the suit had been pending for nearly six months. Livermore v. Ayres, 119 P. 549, 86 Kan. 50.

40 Lesh v. Meyer, 66 P. 245, 63 Kan. 524.

41 Weems v. Melton, 47 Okl. 706, 150 P. 720.

a defendant waives the error in overruling his previous application for a continuance on account of the absence of witnesses.*

42

528.

529.

530.

531.

527. Dismissal without prejudice.

Right-Discretion.

Involuntary-Discretion-Grounds.

Process-Pleadings-Non-compliance with order.

Continuance.

§ 527. Dismissal without prejudice

"An action may be dismissed, without prejudice to a future action:

"First. By the plaintiff, before the final submission of the case to the jury, or to the court where the trial is by the court.

"Second. By the court, where the plaintiff fails to appear on the

trial.

"Third. By the court, for the want of necessary parties.

"Fourth. By the court, on the application of some of the defendants, where there are others whom the plaintiff fails to prosecute with diligence.

"Fifth. By the court, for disobedience by the plaintiff of an order concerning the proceedings in the action.

"Sixth. In all other cases, upon the trial of the action, the decision must be upon the merits." 43

42 Day v. Mooney, 41 P. 142, 3 Okl. 608. 43 Rev. Laws 1910, § 5125.

Dismissal of action under Rev. Laws 1910, § 5125, is judgment, and requires order of court. Mullen v. Noah, 64 Okl. 181, 166 P. 742. Authority given plaintiff by Rev. Laws 1910, § 5126, to dismiss without order of court does not deprive court of power to inquire into means by which motion was obtained. Id.

Gen. St. 1897, c. 95, § 393, provides that plaintiff may dismiss his action

The right of the plaintiff to dismiss his action without prejudice at any time before the final submission of the same is absolute.** But, where the plaintiff has submitted his case by introducing evidence and filing a written brief, and the court has taken the case under advisement and has considered the merits, the plaintiff cannot as a matter of right dismiss his action without prejudice.45

Where the evidence is closed, the jury have returned their findings, and the case is ready for judgment, there is a "final submission" of the case.46

After the trial court sustains a demurrer to the plaintiff's evidence, it is within its discretion to set aside such order and allow the cause to be dismissed by the plaintiff without prejudice.47

§ 529. Involuntary-Discretion-Grounds

Whether it is an abuse of discretion to refuse to continue an action and to dismiss the case for want of prosecution and to refuse to

without prejudice before the final submission of the case to the jury or to the court, where the trial is by the court. In actions to set aside a will, a jury acts merely for the purpose of advising the court, which may refuse to accept their findings. In such an action, the court submitted to the jury certain particular questions of fact, which covered part of the issues of the case. After the jury had answered the questions, plaintiff asked leave to dismiss the action without prejudice, which was denied. Thereupon the court proceeded, after the jury was discharged, to hear testimony on another issue not passed on by the jury. Held, that it was error to refuse to permit a dismissal. Osborne v. Davies, 57 P. 941, 60 Kan. 695.

44 New Hampshire Banking Co. v. Ball, 48 P. 137, 57 Kan. 812.

Under Rev. Laws 1910, §§ 5033, 5125, the refusal of the court to permit the plaintiff below, after the introduction of the evidence, to dismiss without prejudice, to which it excepted, was error. Boardman Co. v. Board of Com'rs of Atoka County (Okl.) 174 P. 272.

45 Warner v. Warner, 112 P. 97, 83 Kan. 548.

46 Dickerman v. Crane, 57 P. 305, 8 Kan. App. 795.

47 Hutchison v. Brown (Okl.) 167 P. 624.

Where demurrer to the evidence was sustained, and the jury discharged, and a motion for new trial overruled, and judgment rendered against plaintiff, the court had power thereafter, at the same term, on motion of plaintiff, to vacate the judgment and grant plaintiff's motion to dismiss without prejudice and render a new judgment against him for costs. Missouri Pac. Ry. Co. v. Berry, 98 P. 204, 79 Kan. 19.

Where a court is considering a demurrer to plaintiff's evidence, and giving reasons why it will have to be sustained, it is error to overrule an application by plaintiff to dismiss without prejudice. Pugsley v. Chicago, R. I. & P. Ry. Co., 77 P. 579, 69 Kan. 599.

reinstate it depends on the particular facts, and is not governed by any general rule.48

A motion for a nonsuit is available in cases tried to the court without a jury.49

While the plaintiff has a right to dismiss without prejudice, a defendant, brought into court by summons, has no right to demand that the action be dismissed as to any proper party plaintiff.5°

Where both parties claim to own and be in possession of real estate, the subject of an action to quiet title, and pray for judgment and introduce evidence presenting questions of law and fact, it is error to dismiss the action.51

The trial court, in the exercise of its discretion, may dismiss an action without prejudice after it has sustained a demurrer to the evidence and heard and overruled a motion for a new trial."2

When the question of jurisdiction was properly presented and it appeared that a local defendant was sued to subject a nonresident defendant to litigation in the county where the suit was brought, the nonresident was entitled to a dismissal.53

In the absence of a showing of prejudice, a petition filed in the office of the clerk of the district court will not be dismissed because entitled in, and by the clerk given, the same docket number as a former case between the same parties which had been finally closed in that court.54

The question of the ownership of notes sued on cannot be raised by a motion to dismiss.55

It is indispensable, to give a court jurisdiction in attachment proceedings, that there should be personal service of the summons in the action upon the defendant, or that the order of attachment be levied upon property of the defendant, or that an order of gar

48 Bane v. Cox, 88 P. 1083, 75 Kan. 184.

49 Lyon v. Lyon, 39 Okl. 111, 134 P. 650.

50 Roberts v. Tomlinson, 57 P. 1060, 9 Kan. App. 85.

51 Wilkinson v. Mears, 94 P. 136, 77 Kan. 273; Inman v. Same, 94 P. 136, 77 Kan. 853.

52 National Hotel Co. v. Crane Bros. Mfg. Co., 31 P. 682, 50 Kan. 49, following Ashmead v. Ashmead, 23 Kan. 262.

53 Makemson v. Edwards, 101 Kan. 269, 166 P. 508.

$4 Allison v. Bryan, 109 P. 934, 26 Okl. 520, 30 L. R. A. (N. S.) 146, 138 Am. St. Rep. 988,

55 Waldock v. Winkler, 51 Okl. 485, 152 P. 99.