Jones v. Jones , 86 Ind. App. 14 ( 1927 )

Appellant sued appellee for a divorce. After a cross-complaint had been filed by appellee, appellant dismissed her complaint and answered by denial. At the conclusion of the evidence at the trial of the cause, the court stated that he would deny the divorce. Whereupon appellee asked leave to introduce further evidence in rebuttal at a later date. Leave was granted, and the cause continued. At the next term of court, appellee appeared, and on his motion, made in the absence of appellant, the cause was dismissed. Subsequently appellant filed her motion to set aside the order of dismissal and reinstate the cause. The motion was overruled, and from the court's order denying the motion, this appeal is prosecuted.

It is contended by appellant that when, at the close of the evidence, the court stated that he would refuse to grant a divorce, such statement was an announcement by the court 1, 2. of its finding, within the meaning of § 433 of the Code of Civ. Proc. (§ 354 Burns 1926) which provides: "An action may be dismissed without prejudice, (1) by the plaintiff, before the jury retires; or, when the trial is by the court, at any time before the finding of the court is announced." In other words, appellant contends that the statement of the court, that the divorce would be denied, was in legal contemplation the rendition of judgment, and would, under above section of the Code, preclude a dismissal of the cause. We do not concur in that view. If it could be said that the remark of the court, made at the conclusion of the evidence, was equivalent to an announcement by the court of its finding, the continuance of the cause to hear further evidence was a withdrawal of the announcement. See Beard v. Becker (1880), 69 Ind. 498; Miller v. Mans (1867), 28 Ind. 194.

Affirmed.

Dausman, J., absent.