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No. 96-1551 ___________

Larry Dolney; Brenda Dolney, * * Appellants, * * Appeal from the United States v. * District Court for the * District of Minnesota. Jones and Lamson, a division of * [UNPUBLISHED] Waterbury and Farrel, * * Appellee. * ___________

Submitted: October 4, 1996

Filed: October 21, 1996 ___________

Before FAGG, WOLLMAN, and MURPHY, Circuit Judges. ___________

PER CURIAM.

In 1995, Larry and Brenda Dolney filed a diversity action against Jones and Lamson. After some proceedings related to the Dolneys' failure to serve defendant, the magistrate judge directed them to file proof of service within ten days and--when they failed to comply--recommended dismissal for failure to prosecute. Before the district court acted on this recommendation, the Dolneys filed a notice of voluntary dismissal. Twenty days later, the district court ordered their action dismissed for failure to prosecute. The Dolneys appeal.

As defendant had not filed an answer or a summary judgment motion, the Dolneys' notice of voluntary dismissal was effective. See Fed. R. Civ. P. 41(a)(1). Thus, the district court was divested of jurisdiction, and its order of dismissal is void for want of jurisdiction. See Safeguard Business Sys., Inc. v. Hoeffel, 907 F.2d 861, 862-64 (8th Cir. 1990). The order being void, the Dolneys' voluntary dismissal remains effective, and they stand free to file a new action if they so desire.

The appeal is dismissed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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