Braby v. Rieban ( 1919 )

WEBER, J.

Plaintiffs appeal from a judgment in favor of defendant. The plaintiffs sought to be declared the owners in fee of certain real estate described in the complaint. The trial court held that the complaint failed to state a cause of action, and rendered- judgment accordingly. *

There was no error in the court’s ruling. Plaintiffs say they desire to commence another suit, and by one of their assignments of error have raised the question whether the judgment appealed from is on the merits, or whether it is a judgment of nonsuit. The record does not disclose whether the cause was submitted for final decision; neither was there a motion for nonsuit made; but, in so far as the court in its conclusions of law found defendant “entitled to an order of ponsuit,” and that the decree orders that “plaintiffs take nothing by their complaint, and that the same be and hereby is dismissed,” we are of the opinion that the judgment is one of nonsuit, and that the district court did not decide the case upon its merits.

Judgment affirmed, with costs.

CORFMAN, C. J., and FRICK, GIDEON, and THURMAN, JJ., concur.