Yuille v. Olsen

Appellant filed his landlord and tenant proceedings in the civil court of record and the defendant-appellee filed his answer and motion to quash the summons and return. The cause came on for trial and the appellant’s counsel was present but offered no testimony to support his petition.

*8Counsel for appellee produced no testimony, but moved the court to dismiss the cause and the court granted the motion to dismiss and the cause was dismissed “with prejudice.”

Since there was no trial or hearing on the merits of the cause the dismissal with prejudice was erroneous and the cause is reversed, with instructions that the lower court dismiss the cause for “want of prosecution,” which is a dismissal without prejudice.