Brown v. St. Paul Mercury Insurance

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.