CROSS-REFERENCES.

Of property of debtor, see Creditors' Suit; Fraudulent Conveyances.

Right to physical examination of injuries, see Damages, §§ 142-146.

Exhibit of personal injury to jury, see Evidence, §§ 203-207.

Taking and using testimony by depositions, see Depositions.

Authority of county judge to take depositions, see Depositions, § 5.

Disclosures by garnishee, see Garnishment, §§ 89-100.

Of fraud as starting running of statutes against right to set aside conveyance by debtor, see Fraudulent Conveyances, §§ 365374.

Inspection and view by jury, see Trial, §§ 55-60.

1. (1886.) Section 394 of the code, for the inspection of books, papers, or documents in the hands of the adverse party, does not apply to copies of a public record open to the inspection of both parties; and a copy of which may be obtained by either or both parties upon payment of the necessary fees. Spielman v. Flynn, 19 Neb. 342 (27 N. W. 224).'

2. (1893.) There is no statutory provision which requires that a party shall either pay or tender fees in order to entitle him to an inspection of a book or paper in the possession of his adversary. First Nat. Bank of Dorchester v. Smith, 36 Neb. 199 (54 N. W. 254).

3. (1893.) The plaintiff in a civil action made a written demand upon the defendant for an inspection and copy, or permission to take a copy, of certain specified entries in a certain book belonging to, in the possession of, and under the control of the latter, relating to the merits of the suit, which demand was not complied with within four days. Held, That under section 394 of the code the court in which the action is pending, or the judge thereof in vacation, has the power, on motion and notice to the defendant, to order that an inspection and copy, or permission to take a copy, of such entries shall be given within a specified

time, and on a failure of the defendant to comply with such order, the court may exclude the entries from being given in ev!dence, or if wanted as evidence by the plaintiff, may direct the jury to presume them to be such as the plaintiff by affidavit alleges them to be. First Nat. Bank of Dorchester v. Smith, 36 Neb. 199 (54 N. W. 254). [Re versed on rehearing. 39 Neb. 90.]

4. (1894.) The making of an order re quiring plaintiff to submit his body to a personal examination by physicians, is not sufficient ground for reversing a judgment where the plaintiff has acquiesced therein by selecting a physician to act as a member of such board of examiners, by submitting to an examination without objecting thereto, and by permitting the testimony of said physicians to be given without raising the want of power of the judge to make the order. Ellsworth v. City of Fairbury, 41 Neb. 881 (60 N. W. 336).

5. (1903.) Under section 394, code of civil procedure, the granting of orders for inspection of books or papers is left to the discretion of the trial court, and it is also left to the discretion of the court whether or not to exclude such books or papers at the trial if inspection is not permitted. Chamberlain v. Chamberlain Banking House. 4 Unof. 278 (93 N. W. 1021).

DISCRETION OF COURT. Review on appeal or error, see Appeal and Error, XV, F.

Bail in criminal prosecutions, see Ba On continuance, see Continuance, §§ 38€5 As to dismissing suit, see Dismissal ad Non-Suit, $$ 16-18.

Modification of award in divorce, see Dr vorce, § 191.

Award of temporary alimony, see Divorce §§ 163-166.

In divorce, see Divorce, § 9.

As to election between counts in crimina' prosecutions, see Indictment and Informe tion. $$ 93-107.

In opening or vacating judgment, see Judgment, §§ 59-63.

In impaneling jury, see Jury §§ 283-286.

$ 1

Conclusiveness of judgment of dismissal, see Judgment, §§ 554-567.

In justice court, see Justices of the Peace, §§ 155-160.

Dismissal of action for penalty for violating liquor laws, see Intoxicating Liquors, $ 255.

Of mandamus on failure to produce evidence, see Mandamus, § 245a.

Of action to quiet title, see Quieting Title, $ 47.

In replevin, see Replevin, §§ 365-377. Dismissal or non-suit for insufficiency of evidence, see Trial, §§ 261-269.

Of probate proceedings, see Wills, §§ 129, 130.

I. VOLUNTARY,

Dismissal without prejudice.

1. (1889.) An action may be dismissed without prejudice to a future action by a plaintiff before the final submission of the case to the jury or court where the trial is to the court (sec. 430 of the civil code); and such dismissal may be made at the option of the plantiff without leave of the court. It is a right specially given by statute which the court has no power to refuse. Grimes v. Chamberlain, 27 Neb. 605 (43 N. W. 395).

2. (1896.) The plaintiff may, as a matter of right, under section 430 of the civil code, dismiss his action without prejudice at any time before its final submission to the court or jury. Sharpless v. Giffen, 47 Neb. 146 (66 N. W. 285).

3. (1906.) Where the plaintiff in a civil action appeals from the judgment of the county court to the district court, he has the same right to dismiss his action without prejudice as though it had originated in the district court. Thornhill v. Hargreaves, 76 Neb. 582 (107 N. W. 847).

After submission for trial.

4. (1884.) After the introduction of the testimony of the plaintiff to a jury impaneled to try the cause, the court has no authority to dismiss a case and discharge the jury without a verdict upon the merits. Smith v. Sioux City & P. R. Co., 15 Neb. 583 (19 N. W. 638).

5. (1888) Under section 430 of the code the plaintiff cannot as a matter of right dismiss an action after the final submission of the case to the court. State, ex rel. Burbington & M. R. R. Co., v. Scott, 22 Neb. 628 (36 N. W. 121).

6. (1838.) Where a cause was submitted to the court on a demurrer to the petition and a decision rendered sustaining the demurrer, but no opinion filed, and afterwards and before the preparation of the opinion the plaintiff attempted to dismiss the ar tion, to which the defendant objected, held. that the attempt to dismiss was unavailing. and that the cause having been finally submitted final judgment in the case would be rendered. State, ex rel. Burlington & V R. R. Co., v. Scott, 22 Neb. 628 (36 N. W 121).

7. (1889.) After the introduction of the testimony of the plaintiff to a jury im paneled to try a cause the court has no authority to dismiss a case and discharge the jury without a verdict upon the merits. Chicago, B. & Q. R. Co., v. Richardson. 28 Neb. 118 (44 N. W. 103).

8. (1892.) After a cause is submitted to the court the right of the plaintiff to dismiss the cause without prejudice without leave of court is at an end. Sharp t. Brown, 34 Neb. 406 (51 N. W. 1030).

9.

(1894.) A plaintiff cannot, as a matter of right, dismiss his action after the final submission of the case to the court or jury. State. ex rel. Holt County, v. Haselet. 41 Neb. 257 (59 N. W. 891).

10. (1903.) The district court may, in the just exercise of its discretionary power, permit plaintiff to dismiss his case after it has been finally submitted to the court or jury. But where the discretionary power of the court is not invoked and the applica tion to dismiss after final submission is made and allowed as a demandable right. the order of dismissal will not be upheld unless a denial of the application would amount to an abuse of discretion. Bee Building Co. v. Dalton, 68 Neb. 38 (93 N. W 930).

11. (1903.) When a case has been submitted upon a demurrer to the evidence, plaintiff's absolute right to dismiss without prejudice is lost. Bee Building Co. v. Daiton, 68 Neb. 38 (93 N. W. 930).

12. (1903.) A plaintiff can not dismiss his action without prejudice, after there has been a final submission of it either to the court or jury. Bee Building Co. v. Dalton, 68 Neb. 38 (93 N. W. 930).

13. (1903.) Where a case has been submitted upon a demurrer to the evidence, plaintiff's absolute right to dismiss without prejudice is lost. Fronk v. Evans City

Steam Laundry Co., 70 Neb. 75 (96 N. W. 1053).

Parties entitled to dismiss.

14. (1898.) A case cannot be dismissed at the instance of a party who may be liable to a judgment therein, against the objection of his adversary, although the recovery might be only for nominal damages. Houck v. Linn, 56 Neb. 743 (77 N. W. 51).

15. (1902.) Three plaintiffs, who were heirs of a deccased party and who had joined with each other in an action to set aside the probated will and declare the same revoked, may dismiss the case as to themselves upon payment of their proportionate share of accrued costs even though they had entered into contracts with attorneys to prosecute their suit for a portion of whatever recovery may be had. Williams v. Miles, 53 Neb. 851 (89 N. W. 455).

Discretion of court.

16. (1901.) Discretion to dismiss a

cause depends upon the existence of rights which would be jeoparded by dismissal, not upon the manner in which the court may become cognizant of them and is not conditioned upon some formal claim or assertion of them in the record. Horton v. State, ex rel. Hayden, 63 Neb. 34 (88 N. W. 146).

17. (1901.) The right of a plaintiff to dismiss his action is not absolute in the sense that the court has no power over or discretion with respect to its exercise. Whenever justice to the court or its officers or to any of the parties requires imposition of terms or retention of the cause upon the docket, the court, in its discretion, may impose such terms or refuse to permit dismissal. Horton v. State, ex rel. Hayden, 63 Neb. 34 (88 N. W. 146).

18. (1901.) The rule that the court has full power and control over its judgments and orders during the term at which they are rendered applies to an order of dismissal entered at the instance of a plaintiff. Horton v. State, ex rel. Hayden, 63 Neb. 34 (88 N. W. 134).

Dismissal by agreement.

19. (1886.) The parties to a cause may dismiss at any time, by agreement. Wilcox v. Brown, 20 Neb. 355 (30 N. W. 264).

Dismissal as to one co-plaintiff.

20. (1898) Where two persons joined as plaintiffs in an action of replevin and took the property under the writ, claimed a concurrent right of possession, but by sev

eral titles, and one recovered judgment, the other could not thereupon dismiss the case as to himself, without the consent of the defendant. Houck v. Linn, 56 Neb. 743 (77 N.

W. 51).

Dismissal as to one defendant.

21. (1888.) In a personal action against two defendants, a summons was served on one in the county where the action was pending, and another summons was issued therein to the sheriff of another and different county, and served on the other defendant in such other county, of which other county he was an inhabitant, and before a general appearance of the party served as last aforesaid in the action, the plaintiff voluntarily dismissed the case as to the defendant served in the county where the said cause was pending. Held, That the court thereby lost jurisdiction of the other defendant. Cobbey v. Wright, 23 Neb. 250 (36 N. W. 505).

22. (1886.) Although the answer of one defendant is a plea in abatement for misjoinder of the other defendant, plaintiff may dismiss as to the latter pending the trial, without re-empaneling or reswearing the jury. Morrissey v. Schindler, 18 Neb. 672 (26 N. W. 476).

Dismissal as to part of cause of action.

23. (1897.) It appeared that one item in the suit, as to which there was a distinct paragraph, separately numbered, in the petition, was not due at the time the action was commenced. Held, That the court did not err, at the time of rendering judgment, in sustaining a motion by plaintiff to dismiss the suit as to such item, without prejudice. Grotte v. Nagle, 50 Neb. 363 (69 N. W. 973).

23a. (1908.) In case of misjoinder of two causes of action in the same petition, the plaintiff may dismiss one of such causes of action and proceed to trial upon the other. McCague Savings Bank v. Croft, 80 Neb. 702 (115 N. W. 315).

Order for dismissal.

24. (1887.) A paper filed by plaintiff to the effect that he does not want the cause to be prosecuted longer, and that the allegations in the petition are not true, does not operate as a dismissal unless called up in open court, and a ruling obtained on it. Cole v. Cole, 21 Neb. 84 (31 N. W. 493). Proceedings in another county.

25. (1877.) It is no objection to the exercise of the right of dismissal that it was

done to enable plaintiff to proceed with another action, fraudulently instituted in another county. Banks v. Uhl, 6 Neb. 145.

Payment of costs as condition.

26. (1895.) The right of a plaintiff to dismiss an action at any time he so desires is not an absolute unqualified right, but conditions precedent, such as payment of costs, may be imposed by the court in its discretion. Sheedy v. McMurtry, 44 Neb. 499 (63 N. W. 21).

27. (1898.) A plaintff has an absolute right to dismiss his action at any time before the final submission of the cause, subject alone to compliance with conditions precedent, such as the payment of costs, etc., as may be imposed by the court. Beals, Torrey & Co. v. Western Union Telegraph Co., 53 Neb. 601 (74 N. W. 54).

28. (1905.) Under our practice the common law rule, making the payment of costs in the action dismissed a prerequisite to the prosecution of another, is one which the trial court in the exercise of a sound discretion may or may not apply. Yates v. Jones Nat. Bank, 74 Neb. 734 (105 N. W. 287); Yates v. Utica Bank, Id.; Yates v. Bailey, Id.; Yates v. Bank of Staplehurst, Id.

Operation and effect.

29. (1877.) A voluntary dismissal of an action by the plaintiff is, practically, a final disposition of the case, except as to unpaid costs, for which the court may enter judg ment against him. Banks v. Uhl, 6 Neb. 145.

30. (1885.) Where a cause has been dismissed in vacation by the party plaintiff, who paid all costs, an intervention at a subsequent term cannot be had in the same cause. Harris v. Cronk, 17 Neb. 475 (23 N. W. 341).

31. (1889.) An entry of dismissal terminates the jurisdiction of the court over the cause of action presented by plaintiff, except for the purpose of entering the order of dismissal and rendering judgment for costs. Grimes v. Chamberlain, 27 Neb. 605 (43 N. W. 395).

32. (1896.) In an action wherein the defendant has not appeared, a dismissal filed by plaintiff, as provided by statute, ends the case, and litigation therein cannot be continued. Sims v. Davis, 48 Neb. 720 (67 N. W. 765).

33. (1898.) A dismissal which does not involve the merits of the case is not a bar

to another suit upon the same cause of action nor to presentation of the claim against the estate of deceased defendant. Bank of Maywood v. Estate of McAllister, 56 Neb. 188 (76 N. W. 552).

34. (1903.) The commencement of a sit in replevin which was immediately dismissed without prejudice, and the property, in question returned to the officer, to be delivered by him to the defendant, will not operate as a bar to the bringing of a subsequent action. Cinfel v. Malena, 67 Net. 95 (93 N. W. 165).

35. (1903.) When a suit is dismissed as to one of two or more defendants without prejudice, such defendant ceases to be a party to the record, and the effect of the dismissal is to leave such defendant in the same position as if he had never been a party to the action. Agnew v. Omaha Nat. Bank, 69 Neb. 654 (96 N. W. 189).

36. (1903.) If, before an order of dismissal, as to one defendant, there has beer a decision or decree upon one of several issues made by the pleadings, but such de cision does not fix or determine the liability of the defendant who is subsequently dis missed, such preliminary decree does not estop the defendant dismissed from litigat ing in a subsequent action the same issue Agnew v. Omaha Nat. Bank, 69 Neb. 654 (9) N. W. 189).

37. (1905.) The voluntary dismissal of an action before final submission does not operate as an estoppel, and is without preju dice to a future action. Yates v. Jones Nat. Bank, 74 Neb. 734 (105 N. W. 287); Yates v. Utica Bank, Id.; Yates v. Bailey, Id.; Yates v. Bank of Staplehurst, Id.

38. (1906.) A dismissal of an appeal from a county court does not operate as an affirmance of the judgment of the inferior court, and such judgment is not available in bar of a future action on the deman Thornhill v. Hargreaves, 76 Neb. 582 (107 N. W. 847).

As to set-off and counter-claim. 39. (1882.) When an action is dismissed without prejudice before submission, a de fense of usury to a promissory note is not such a set-off as can be retained and tried by the court New England Mortgage Co. v. Angle, 12 Neb. 504 (11 N. W. 753).

40. (1884.) If after a set-off is filed the plaintiff dismisses his action and pays the costs, the justice after the entry of dis missal should docket the set-off under its