§ 25-602 — Dismissal without prejudice; by plaintiff in vacation; exceptions; payment of costs

Nebraska § 25-602

• Jurisdiction: Nebraska
• Ch. 25: Courts; Civil Procedure

Text

The plaintiff in any case pending in the district court or Supreme Court of the state, when no counterclaim or setoff has been filed by the opposite party, has the right in the vacation of any of such courts to dismiss such action without prejudice, upon payment of costs, which dismissal shall be, by the clerk of any of such courts, entered upon the record and take effect from and after the date thereof.

Legislative History

Source: Laws 1867, § 1, p. 51; R.S.1913, § 7655; C.S.1922, § 8599; C.S.1929, § 20-602; R.S.1943, § 25-602; Laws 2018, LB193, § 9. Annotations: A will contest is an in rem proceeding and is not an action for purposes of civil procedure statutes governing voluntary dismissal, including section 25-601 and this section. In re Estate of Ryan, 313 Neb. 970, 987 N.W.2d 634 (2023). No case addressing the right of a party to dismiss pursuant to section 25-601 has required the party to pay costs pursuant to this section. Without a motion for attorney fees pending, such fees would not be a part of the costs to be paid under either section 25-601 or this section. Kansas Bankers Surety Co. v. Halford, 263 Neb. 971, 644 N.W.2d 865 (2002). Plaintiff had right to dismiss without prejudice to take advantage of amended statute on venue of action. Grosc v. Bredthauer, 136 Neb. 43, 284 N.W. 869 (1939). Dismissal after final submission of case must be by order of court entered on journal. Knaak v. Brown, 115 Neb. 260, 212 N.W. 431 (1927). Filing petition for appointment of administrator is not an "action." In re Estate of Glover, 104 Neb. 151, 175 N.W. 1017 (1920). Section is applicable to election contest; cannot set aside dismissal without notice to contestant, to allow another to intervene. Moore v. Waddington, 69 Neb. 615, 96 N.W. 279 (1903). Dismissal before appearance by defendant ends case. Sims v. Davis, 48 Neb. 720, 67 N.W. 765 (1896). Right to dismiss is not absolute, but depends upon payment of costs. Sheedy v. McMurtry, 44 Neb. 499, 63 N.W. 21 (1895). After case is submitted, power to dismiss without prejudice ceases. Sharp v. Brown, 34 Neb. 406, 51 N.W. 1030 (1892). Where there is no setoff or counterclaim, and costs are paid, court cannot at next term permit intervention. Harris v. Cronk, 17 Neb. 475, 23 N.W. 341 (1885).