Pine Bluff daily graphic., 1914-04-07

PI SJuuICt, ana III SuCn cases the ac-
 ton Of the court, unless it has
 abused it's discretion, is no ground
 plaintiff, under the statute, may
 not demand as his right what is
 within the discretion of the court,
 Ill the interest of justice to permit" :"
 St l.. S.-W. Ky. White, 69 Ark.
 432.
 As late as July 29, 1905. our su- preme court cited and approved this declslon, and said:
 It was in the sound discretion o1 the court to permi a non-suit
 after llnal submission,' and it was
 held an abuse of discretion and 1 reversible error in the circuit
 court Gin that easel to refuse to
 allow plaintiff a non-suit.
 Carpenter V Dressler, 76 Ark. 403.
 1 By these decisions of the supreme court of Arkansas it is no longer an open question for this court to de- eide. The law is settled beyond con- | troversy that the court trying the case is vested with discretion to per ! init the plaintiff to discontinue his action and enter non-suit after the final submission at any time before the judgment is formally rendered.
 The effect of non-suit in any cause is simply to leave all the parties interested in exactly the same position as they would have occupied If no such proceeding had been in structed. Here again we are not left in doubt, for this precise question has been determined by our own su- preme court
 4 non-suit, whether voluntary
 or involuntary, is not Judgment
 on the merits and will not prevent another suit upon the same cause
 of action.
 It is said to be the blowing out
 of candle which a man at hls
 own pleasure may light again.
 Hallum Dickinson, 41 Ark. l2l.
 It is an elementary principle of law, laid down in all text books bear ing on the subject, that where an ln- ferior court is vested with discretion as to a particular subject, the writ of mandamus will not lie to control that discretion. It was so decided in the very first case ever determined by the supreme court of this state and has been followed and re-affirm ed in more than thirty cases since.
 Going Mills, 1 Ark. D. II.
 I have traced the subject through almost innumerable cases in our supreme court reports down to date, and find that it is the settled law of Arkansas beyond disputs> It follows, therefore, as an inevitable conclus- ion, that so much of the prayer of the petition in the case at bar as asks this court to compel the county court to revoke it's order granting the peti- tioners in the county court the pri- vilege of withdrawing their applica- ton for license and entering nonsult, and to require it to proceed to. final judgment thereon, must be denied.
 It also follows as an absolutely necessary sequence that, having the right to permit the petitioners to dis miss their application for license to sell liquor, the county court also had discretion to permit them to with draw their pleadings from the files. This practice is apparently universal and matter of frequent occurrence in all courts, and does not seem to have been legally questioned in this state or elsewhere, so far as l am able to ascertain by very careful search of all authorities at my com mand It very often happens that it becomes necessary for the plain .iffs, in proceeding in one court, after the matter has been determined therein, to use the original papers and exhibits in another action ito be brought thereafter ill the same or some other court. Leave to withdraw the papers for that purpose is al- ways granted as matter of course and is clearly within the power and discretion of the court. A refusal to permit such withdrawal would, in very many cases, amount to a denial of justice; would deprive the plain | tiff of the means of enforcing valu- able legal rights of property, and would, therefore, be an abuse of judi cial discretion and reversible error. Tn this case, when the parties who had filed applications for license to sell liquor withdrew their petitions the remonstrants against granting such licenses had secured every object for which they contended They objected to the granting of licenses for saloons. We'll, none were granted or could be in that case There was not even a petition for license pending. The whole matter was ended and was in effect as though it had never been. All the purposes and objects of the remon- strance were accomplished as fully as if the county court had decided that the petitioners for license had not made a sufficient showing to en- title them thereto and had denied the same. The question as to the right of those applying for saloon licenses to use the original petition of citizens ln subsequent proceeding in the county court cannot possibly arise or be considered ill this case. That is a matter to be decided by the county court if the question is presented to it, and if the decision should be er- roneous can only be corrected by appeal.
 The case at bar must be decided upon the facts as they existed at the