NE Code § 25-601 (2021)
2021 Nebraska Revised Statutes|Chapter 25 - Courts; Civil Procedure|25-601 - Dismissal without prejudice.

25-601.  Dismissal without prejudice.An action may be dismissed without prejudice to a future action (1) by the plaintiff, before the final submission of the case to the jury, or to the court where the trial is by the court; (2) by the court where the plaintiff fails to appear at the trial; (3) by the court for want of necessary parties; (4) by the court on the application of some of the defendants where there are others whom the plaintiff fails to diligently prosecute; (5) by the court for disobedience by the plaintiff of an order concerning the proceedings in the action. In all other cases on the trial of the action the decision must be upon the merits.Source   R.S.1867, Code § 430, p. 465;   R.S.1913, § 7654;   C.S.1922, § 8598;   C.S.1929, § 20-601;   R.S.1943, § 25-601. Annotations  1. Before final submission 2. After final submission 3. Want of necessary parties 4. Disobedience by plaintiff 5. Miscellaneous 1. Before final submission Under this section, a plaintiff has the right to dismiss an action without prejudice any time before final submission of the case, so long as no counterclaim or setoff has been filed by an opposing party. HBI, L.L.C. v. Barnette, 305 Neb. 457, 941 N.W.2d 158 (2020). A plaintiff has the right to dismiss the action it has brought at any time prior to final submission. United States Fire Ins. Co. v. Affiliated FM Ins. Co., 225 Neb. 218, 403 N.W.2d 383 (1987). An order sustaining a demurrer is not a final order. Therefor, an action may be dismissed as a matter of right upon plaintiff's motion following the demurrer. Koll v. Stanton-Pilger Drainage Dist., 207 Neb. 425, 299 N.W.2d 435 (1980). Plaintiff had right hereunder to dismiss his claim for reinstatement in union and could then pursue claim for damages for wrongful discharge without exhausting administrative remedies. Poppert v. Brotherhood of R. R. Trainmen, 187 Neb. 297, 189 N.W.2d 469 (1971). Right of plaintiff to dismiss action is not a matter of judicial grace or discretion. In divorce action, until trial court enters an order imposing some obligation, plaintiff has unqualified right to dismiss regardless of nature of pleadings on file. Werner v. Werner, 186 Neb. 558, 184 N.W.2d 646 (1971). County attorney may dismiss action in juvenile court before trial without leave of court. In re Interest of Moore, 186 Neb. 67, 180 N.W.2d 917 (1970). Plaintiff may dismiss action as a matter of right at any time before final submission of case. Gebhart v. Tri-State G. & T. Assn., 181 Neb. 457, 149 N.W.2d 41 (1967). An action may be dismissed without prejudice by a plaintiff as a matter of right at any time before final submission of the case. Giesler v. City of Omaha, 175 Neb. 706, 123 N.W.2d 650 (1963). Section applies to dismissal of counterclaim before final submission. Harbert v. Mueller, 156 Neb. 838, 58 N.W.2d 221 (1953). A counterclaim may be dismissed as a matter of right at any time before final submission. Feight v. Mathers, 153 Neb. 839, 46 N.W.2d 492 (1950). Plaintiff may dismiss without prejudice to take advantage of amended venue statutes and bring action in another county. Grosc v. Bredthauer, 136 Neb. 43, 284 N.W. 869 (1939). The right of the plaintiff to dismiss without prejudice before final submission applies in appeals from the Workmen's Compensation Court to district court. Chilen v. Commercial Casualty Ins. Co., 135 Neb. 619, 283 N.W. 366 (1939). Before final submission of a case to the jury or court, a dismissal by plaintiff without prejudice to a future action is not a matter of judicial grace or discretion, but is a statutory right. Duffy v. Cody, 129 Neb. 737, 262 N.W. 828 (1935). Before final submission plaintiff may dismiss as a matter of right. Reams v. Sinclair, 97 Neb. 542, 150 N.W. 826 (1915); Snyder v. Collier, 85 Neb. 552, 123 N.W. 1023 (1909). One of several plaintiffs has right to dismiss action so far as he is concerned; informality in dismissal is cured where cause proceeds to final determination between remaining parties. Henkel v. Boudreau, 94 Neb. 338, 143 N.W. 236 (1913). Plaintiff may, as a matter of right, dismiss his action without prejudice at any time before its final submission. Snyder v. Collier, 85 Neb. 552, 123 N.W. 1023 (1909). Plaintiff has absolute right to dismiss without prejudice before final submission of cause. Beals v. Western Union Tel. Co., 53 Neb. 601, 74 N.W. 54 (1898); Sharpless v. Giffen, 47 Neb. 146, 66 N.W. 285 (1896). Where property was not taken or has been returned, plaintiff in replevin may dismiss. Saussay v. Lemp Brew. Co., 52 Neb. 627, 72 N.W. 1026 (1897). Plaintiff in replevin, who has taken property, cannot dismiss without defendant's consent. Vose v. Muller, 48 Neb. 602, 67 N.W. 598 (1896). Plaintiff in replevin, who has obtained possession of property under the writ, cannot dismiss without consent of defendant. Garber v. Palmer, Blanchard & Co., 47 Neb. 699, 66 N.W. 656 (1896). Trial court has no authority to enter involuntary nonsuit and judgment of dismissal. Proper practice is to instruct jury to return verdict for defendant. Zittle v. Schlesinger, 46 Neb. 844, 65 N.W. 892 (1896). Refusal of court to dismiss is not final order. Supreme Court will not reinstate action when plaintiff has dismissed. Grimes v. Chamberlain, 27 Neb. 605, 43 N.W. 395 (1889). Plaintiff may dismiss as to one defendant during trial though answer pleads misjoinder of defendants. Morrissey v. Schindler, 18 Neb. 672, 26 N.W. 476 (1886). An action may be dismissed without prejudice to a future action by the plaintiff before the final submission of the case to the court where the trial is by the court, and it is generally a right of the plaintiff that is not a matter of judicial grace or discretion. In re Guardianship of David G., 18 Neb. App. 918, 798 N.W.2d 131 (2011). This section applies to a case on appeal from the small claims court pending in district court, if there has not been final submission to the district court judge. Sutherland v. Shoemaker, 6 Neb. App. 157, 570 N.W.2d 375 (1997). 2. After final submission After defendant moves for a directed verdict and arguments of both parties are completed, a case is under submission and plaintiff loses absolute right to dismiss without prejudice. Any time before final submission of the case to the fact finder, plaintiff may dismiss an action, without prejudice, as a matter of right. Collection Specialists v. Vesely, 238 Neb. 181, 469 N.W.2d 549 (1991). When a case has been submitted upon a motion for a directed verdict, plaintiff's absolute right to dismiss without prejudice is lost, but when the motion is overruled there is no longer a final submission where issues remain to be determined by the jury and have not been submitted to it. Miller v. Harris, 195 Neb. 75, 236 N.W.2d 828 (1975). Where plaintiff presented her case and rested, the defendant moved for dismissal, and the court took the matter under advisement, the case was submitted and plaintiff had lost her right to dismiss without prejudice. Gydesen v. Gydesen, 188 Neb. 538, 197 N.W.2d 67 (1972). After final submission, dismissal without prejudice requires leave of court. Tuttle v. Wyman, 149 Neb. 769, 32 N.W.2d 742 (1948). When defendant moves to dismiss plaintiff's action at close of plaintiff's evidence, he admits plaintiff's testimony to be true, together with every conclusion that may fairly and reasonably be drawn therefrom, and court must thereupon determine as question of law whether plaintiff's evidence is sufficient to support judgment for plaintiff. Schroeder v. Bartlett, 129 Neb. 645, 262 N.W. 447 (1935). Dismissal is not demandable as a right after the cause has been fully tried and unconditionally submitted to the court. Pettegrew v. Pettegrew, 128 Neb. 783, 260 N.W. 287 (1935). Final submission of action contemplates its submission upon both law and fact. Plattsmouth Loan & Bldg. Assn. v. Sedlak, 128 Neb. 509, 259 N.W. 367 (1935). Trial court's ruling on defendant's motion to dismiss jury was final submission hereunder so that plaintiff could not dismiss the case without prejudice thereafter. Stungis v. Wavecrest Realty Co., 124 Neb. 769, 248 N.W. 78 (1933). Dismissal after final submission must be by order of court entered on journal. Knaak v. Brown, 115 Neb. 260, 212 N.W. 431 (1927). Plaintiff may dismiss without prejudice after reversal and remand for new trial. Bancroft Drainage Dist. v. Chicago, St. P., M. & O. Ry. Co., 102 Neb. 455, 167 N.W. 731 (1918). Court may permit dismissal after submission. Nelson v. Omaha & C. B. St. Ry. Co., 93 Neb. 154, 139 N.W. 860 (1913). Plaintiff appealing to district court may dismiss action. Dismissal is not affirmance of judgment below, and is not res judicata. Thornhill v. Hargreaves, 76 Neb. 582, 107 N.W. 847 (1906). Absolute right to dismiss is lost after submission on demurrer to evidence. Fronk v. Evans City Steam Laundry Co., 70 Neb. 75, 96 N.W. 1053 (1903). When a case has been submitted upon a demurrer to the evidence, and the demurrer sustained, plaintiff's absolute right to dismiss without prejudice is lost. Bee Building Co. v. Dalton, 68 Neb. 38, 93 N.W. 930 (1903). Court may impose reasonable terms or refuse dismissal. Horton v. State ex rel. Hayden, 63 Neb. 34, 88 N.W. 146 (1901). Involuntary nonsuit for failure of proof is unauthorized; it is error, without prejudice, where directed verdict would have been proper. Thompson v. Missouri P. Ry., 51 Neb. 527, 71 N.W. 61 (1897). Plaintiff cannot dismiss after cause has been submitted to court or jury. State ex rel. Board of Supervisors of Holt County v. Hazelet, 41 Neb. 257, 59 N.W. 891 (1894). Appellant from justice court may dismiss without consent of appellee. Eden Musee Co. v. Yohe, 37 Neb. 452, 55 N.W. 866 (1893). Equity rule prevails; court may excuse payment of costs in first action as prerequisite to maintaining second. Union P. Ry. Co. v. Mertes, 35 Neb. 204, 52 N.W. 1099 (1892). After a demurrer to plaintiff's petition has been sustained, plaintiff cannot afterwards dismiss the action. State ex rel. Burlington & M. River R. R. Co. v. Scott, 22 Neb. 628, 36 N.W. 121 (1888). After submission, a trial court has no authority to dismiss a case without prejudice on the basis that a plaintiff has failed to produce sufficient evidence to sustain his or her claims. Holling v. Holling, 16 Neb. App. 394, 744 N.W.2d 479 (2008). Plaintiff's privilege of dismissal without prejudice is not demandable as of right after cause has been submitted, but may be granted in exercise of discretion. Iowa-Nebraska Light & Power Co. v. Daniels, 63 F.2d 322 (8th Cir. 1933). 3. Want of necessary parties Action may be dismissed by court for want of necessary parties. Dempster v. Ashton, 125 Neb. 535, 250 N.W. 917 (1933). Where motion is made to dismiss for want of prosecution, defendant must serve notice on plaintiff. Berggren v. Berggren, 24 Neb. 764, 40 N.W. 284 (1888). 4. Disobedience by plaintiff A civil action may be dismissed if, absent a showing of good cause, a litigant fails to prosecute the action in compliance with the Nebraska Supreme Court's Case Progression Standards for civil actions in district courts. Billups v. Jade, Inc., 240 Neb. 494, 482 N.W.2d 269 (1992). Pursuant to subsection (5) of this section, it is within the discretion of the district court to dismiss a petition without prejudice for disobedience by the plaintiff of a reasonable order concerning the proceedings in the action. Kerndt v. Ronan, 236 Neb. 26, 458 N.W.2d 466 (1990). It is within the sound discretion of the district court to dismiss a petition without prejudice for disobedience by the plaintiff of a reasonable order concerning the proceedings in the action. Vodehnal v. Grand Island Daily Independent, 191 Neb. 836, 218 N.W.2d 220 (1974). Action may be dismissed without prejudice for failure of plaintiff to appear at pretrial conference. Pressey v. State, 173 Neb. 652, 114 N.W.2d 518 (1962). Failure or refusal of plaintiff to comply with a proper order of court with respect to amendment of petition may be valid ground for dismissal of the action. Bushnell v. Thompson, 133 Neb. 115, 274 N.W. 453 (1937). Court has power to dismiss, with prejudice, for plaintiff's failure to comply with rules or orders. Ferson v. Armour & Co., 109 Neb. 648, 192 N.W. 125 (1923). District court has discretionary power to dismiss petition without prejudice for disobedience of reasonable order. Howell v. Malmgren, 79 Neb. 16, 112 N.W. 313 (1907). 5. Miscellaneous A motion for summary judgment can be a final submission that will prevent voluntary dismissal under this section. Millard Gutter Co. v. American Family Ins. Co., 300 Neb. 466, 915 N.W.2d 58 (2018). No case addressing the right of a party to dismiss pursuant to this section has required the party to pay costs pursuant to section 25-602. Without a motion for attorney fees pending, such fees would not be a part of the costs to be paid under either this section or section 25-602. Kansas Bankers Surety Co. v. Halford, 263 Neb. 971, 644 N.W.2d 865 (2002). Where wife dismissed her suit to dissolve marriage, husband had no right to notice, hearing, or right to attach conditions to dismissal because he did not file a request for affirmative relief on merits of cause. Temporary orders perished with dismissal because nothing remained to invoke jurisdiction. Schroeder v. Schroeder, 223 Neb. 684, 392 N.W.2d 787 (1986). The right of a plaintiff to dismiss is not a matter of judicial grace or discretion, but may be made subject to condition, such as reimbursement of costs, where equity so requires. Dawson v. Papio Nat. Resources Dist., 210 Neb. 100, 313 N.W.2d 242 (1981). District court has jurisdiction to enter judgment of dismissal without prejudice upon sustaining of demurrer. Akins v. Chamberlain, 164 Neb. 428, 82 N.W.2d 632 (1957). Filing of petition for probate of will is not an action. Hill v. Humlicek, 156 Neb. 61, 54 N.W.2d 366 (1952). Practice of entering "nonsuit" upon conclusion of opening statements by counsel to jury is disapproved. Temple v. Cotton Transfer Co., 126 Neb. 287, 253 N.W. 349 (1934). Proceedings under writ ad quod damnum are included in term "action" used in this section, providing for dismissal. Blue River Power Co. v. Hronik, 116 Neb. 405, 217 N.W. 604 (1928). Filing petition for appointment of administrator is not an "action" hereunder. In re Estate of Glover, 104 Neb. 151, 175 N.W. 1017 (1920). Where the only relief is against a nominal defendant who did not appear and upon whom the record fails to show service of process, dismissal of plaintiff's cause of action by court is proper. Elmore v. McMillan, 79 Neb. 621, 113 N.W. 165 (1907). Court cannot adjudge that new action shall not be subject to defense of statute of limitations. Linton v. Cooper, 75 Neb. 167, 106 N.W. 170 (1905). Dismissal does not operate as estoppel; before action is recommenced, court may require payment of costs in first. Yates v. Jones Nat. Bank, 74 Neb. 734, 105 N.W. 287 (1905). Where one of two plaintiffs had judgment in replevin, the other cannot dismiss without defendant's consent. Houck v. Linn, 56 Neb. 743, 77 N.W. 51 (1898). A dismissal for lack of subject matter jurisdiction is not a judgment on the merits and is entered without prejudice. In re Guardianship of David G., 18 Neb. App. 918, 798 N.W.2d 131 (2011).