McVey v. Burns

The opinion of the court was delivered by

The action below' was replevin. The plaintiff there (defendant in error here,) obtained possession of the property by the writ, and then when the case was called for trial moved the court to dismiss the action without prejudice. This motion was sustained, and of this ruling plaintiff in error complains. The court at the.same time that it sustained the motion to dismiss ordered that the property replevied be returned to the defendant, and that the plaintiff pay the costs of the action. We see no error in the ruling of the court. In all cases an action may be dismissed by the plaintiff without prejudice at any time before the final submission. Civil code, § 397. If a counterclaim or set-off has been presented, the defendant may proceed to the trial of his claim, notwithstanding the dismissal. Code, § 398. In a *293replevin action, “if the property has been delivered to the plaintiff, and judgment rendered against him on demurrer, or if he otherwise fail to prosecute his action to final judgment, the court shall, on application of the defendant or his attorney, proceed to inquire into the right of property and right of possession of the defendant to the property taken.” Code, §184. And the court in such action, “before or after judgment, may compel the delivery of the property to the officer or party'entitled thereto, by attachment.” Code, §188. These sections afford ample protection to a defendant in such an action, when the plaintiff elects to dismiss his suit without prejudice. In this case the record discloses no formal application under these sections. Perhaps none was made. But the court ordered the return of the property. If that order has been obeyed, surely the defendant below has no cause of complaint. If not, let him apply to that court under §188, or bring his action on the bond, in which, notwithstanding the form of the judgment in this case, he can recover full compensation. Marix v. Franke, 9 Kas., 132.

The judgment will be affirmed.