Opinion
No. 4178.
Decided February 3, 1953.
The granting of plaintiff's motion for a voluntary nonsuit, without prejudice, prior to hearing upon the merits but subsequent to a hearing upon a demurrer without decision was proper as a discretionary matter. No question of law is presented to the Supreme Court where the issue was never raised in the Trial Court.
BILL IN EQUITY, brought on July 11, 1950, for an injunction and damages claimed by the plaintiff company due to the defendant's allowing fuel oil to be discharged into the Salmon Falls River, the water of which the plaintiff used for processing and cleaning. On August 24, 1950, the defendant filed a demurrer and answer, and on September 7, 1950, the plaintiff filed a motion for discovery. On the twenty-ninth of September a stipulation was filed to comply with the motion for a temporary restraining order. On October 2, the defendant filed a motion, which was granted after a hearing on the nineteenth, to examine photographs, inspect damaged merchandise, and take samples of the water in the plaintiff's mill. At the September 1950 term, there was a hearing on the defendant's demurrer and an order that briefs be filed in support of the oral arguments. The defendant complied with this order but the plaintiff did not, and no decision has been rendered on it. At the February 1951 term, the plaintiff asked for a jury trial. Later, in the fall of 1951, without the knowledge of its counsel in this case, the plaintiff company brought an action against the defendant for the same cause in the Federal Court which, on the defendant's motion, was stayed, pending final determination of the action in the Superior Court. On February 4, 1952, the Clerk of the Superior Court notified the plaintiff that three terms having elapsed, the reply brief on the demurrer should be filed, but this was not done. On June 10, 1952, the plaintiff filed the following: "The petitioner Baxter Woolen Company, Inc. hereby dismisses the above proceeding, without prejudice." After a hearing on this motion on June 12, the Court filed an order "Permission granted to so mark," to which the defendant excepted. Transferred by Goodnow, C. J.
Charles F. Hartnett (by brief and orally), for the plaintiff.
Sulloway, Jones, Hollis Godfrey (Mr. Stuart P. French orally), for the defendant.
As recently as in the case of Saykaly v. Manchester, 97 N.H. 4, 5, our court said, "The right of a plaintiff to a voluntary dismissal prior to a hearing on the merits is not open to question in this state." The defendant in its brief concedes this to be so but argues that because a demurrer had been filed and a hearing held upon it, though not decided, the plaintiff should not be permitted to dismiss except within the Court's discretion. It also argues that no discretion was exercised but the motion to dismiss was granted as a matter of law. Finally the defendant claims that to dismiss in this situation in any event was an abuse of discretion.
We do not believe the record supports the defendant's claim that the Court granted the plaintiff's motion for a voluntary nonsuit as a matter of law. On the contrary it appears to us that his discretion was rightfully exercised and the dismissal was proper. Saykaly v. Manchester, 97 N.H. 4, and authorities cited.
In regard to the matter of costs which the defendant suggests should be allowed in any event, there is nothing to show that this question was raised before the Trial Court, and it follows this issue is not before us. Bullard v. McCarthy, 89 N.H. 158.
Exceptions overruled.
All concurred.