Opinion by.

As to the decision of this case on the submission on its merits, it will suffice to say that we find the opinion of the circuit court to be accurate in its statements and deductions, and correct in its conclusion, and we can perceive no error in the refusal of the court to set aside the judgment on either application of the plaintiffs counsel, for unfairness or surprise in the submission of the case.

The only question requiring more particular notice is whether the court erred in refusing, on the motion of the plaintiffs counsel after the submission of the case, to allow the action to be discontinued, or dismissed without prejudice to a future action.

In the exercise of a sound discretion and with a view to the ends of justice, the court might, perhaps, have sustained the motion, but after the cause had been regularly heard and submitted to the court for its decision on the merits, the plaintiff could not, as a matter of right, avoid the result of the trial, by dismissing the cause without prejudice to another suit, for a re-litigation of the same matter of controversy and there was no abuse of the discretion of the court in overruling this motion. Wherefore the judgment is affirmed.