Opinion
No. 3963.
Decided April 3, 1951.
The granting of plaintiff's motion to dismiss without prejudice after the case had been reopened by request of the defendant but before a final decree had been entered was within the sound discretion of the Trial Court. An exception to the granting of the motion to dismiss, in such case, presents no question of law where there was no request that facts be found and no record preserved of either the evidence or statements of counsel at the hearing on the motion.
PETITION, for leave to file a statement of claim for personal injuries allegedly received by the plaintiff from the collapse of a portion of the Kelley Falls Bridge, so-called, maintained by the city of Manchester. The petition was filed under the Highway Law of 1945, chapter 188, Part 18, sections 26, 27, and alleges that the plaintiff "was hospitalized, became distracted, sick and generally disabled," so that she was unavoidably prevented from filing a statement within the time limited by statute. After hearing the Court dismissed the petition and the plaintiff's exceptions were transferred to the Supreme Court.
At a subsequent term "after an informal conference with counsel, the Court, at the request of the defendant, reopened the case for the purpose of permitting the City of Manchester to introduce one further witness and assigned a date for further hearing on the pending petition. At said hearing, counsel for the petitioner moved that the pending petition be `dismissed without prejudice.' The Court granted the motion and noted the exception of the defendant."
All questions of law raised by the foregoing exception were reserved and transferred by Wheeler, J.
Chretien Craig for the plaintiff.
J. Francis Roche, city solicitor, for the defendant.
The right of a plaintiff to a voluntary dismissal prior to a hearing on the merits is not open to question in this state. Webster v. Bridgewater, 63 N.H. 296; Leonard v. Fahey, 87 N.H. 170, 171; Judge of Probate v. Abbot, 13 N.H. 21. At the time that the plaintiff submitted his motion to dismiss the petition without prejudice, the case had been reopened and no final decree had been made. At this stage of the proceedings the plaintiff could not dismiss the petition without prejudice as a matter of right but it could be dismissed only in the legally reviewable discretion of the Trial Judge. Ingalls v. Railroad, 83 N.H. 397. Such a limitation on the right to take a voluntary dismissal after the case is opened is generally considered today to represent the better practice. Vanderbilt, Minimum Standards of Judicial Administration, 251-254 (1949).
There is nothing in the record or the briefs of counsel to indicate the reasons for which the Trial Court granted the plaintiff's motion. Whether the motion was granted on evidence submitted or on statements of counsel does not appear. "There was no request that the facts be found" (Vidal v. Errol, 86 N.H. 585, 586) and no record of either the evidence or statements of counsel have been transferred. Such procedure is not uncommon; no objection to it was made by the parties in the trial court "and it is now too late for either of them to object to it." Kusky v. Laderbush, 96 N.H. 286, 287. We cannot say on the record before us that there was any abuse of discretion by the Presiding Justice in granting the motion to dismiss without prejudice. Vidal v. Errol, supra.
Exception overruled.
All concurred.