Harris v. Beam

Day, Ch. J.

Section 2844 of the Code provides that an action may be dismissed by the plaintiff before the final submission of the case to the jury, or to the court, when the trial is by the court.

i kracticbaction-final submission. It is claimed by appellant that the cause had been finally submitted, and that the time for dismissing the cause had Passe(^- In-every case finally submitted there mus* t>e some moment of time in which the condition of being finally submitted is assumed. Ordinarily there is no difficulty in determining whether or not a case has been submitted. But the difficulty increases with approach to the time which marks, the line of demarkation between a case finally submitted and one not finally submitted, and becomes greatest when that precise timéis reached. If the last word of the court’s charge to the jury had not been read, it would probably be conceded that no final submission had occurred. But, as the charge had been fully read, it is claimed nothing further remained for court or counsel to do, and that the cause was finally in the hands of the jury. This case presents the question, perhaps, in the most difficult light of which it is susceptible. Appellant cites and relies upon Hays v. Turner, 23 Iowa, 214 . But that is not a parallel case. In that case the trial was by the court. The court had found the facts and had announced the conclusions of law and was about to pronounce judgment. The cause had been finally submitted to the court, and the court had acted upon it to the extent of finding and settling both the facts and the law. The case was in the same position as a cause tried by jury after the return of the verdict. It is quite clear that in that ease it was too late for the plaintiff to dismiss. In this case we are of opinion that the right to dismiss existed.

A cause is not finally submitted to the jury when the last word of the charge is read. In practice, the jury are directed by the court to retire in charge of a sworn officer to consider of their verdict, or to enter upon the consideration of the case without retiring.

This direction by the court to the jury to enter upon the consideration of the case may fairly be regarded as the mo *120 ment when the final submission of' the cause occurs. An attorney cannot always tell whether he can safely submit his cause to the jury upon the evidence introduced until he heai’s the charge of the court. If, in his judgment, the charge is so adverse to him that he cannot safely trust his case in the hands of the jury, he ought, at that moment, to be permitted to dismiss without prejudice to a future action. The statute, in our judgment, does not deny him that right.

Affirmed.