Archer v. Chicago, Burlington & Quincy R'y Co.

Seekers, J.

,3iimitaUoiS” by dismission without prejudice. I. It is provided by statute that an action may be dismissed, and that such dismissal shall be without prejudice to a further action, when the dismissal is before the final submission of the action to the jury, or to the court, when the trial is to the court. Code, § 2844. This section does not enlarge or extend the statute of limitations, but simply provides that another action may be brought and maintained, if the original action could have been brought and maintained if commenced at that time.

2.-• acsónaUnjury: dismission wUhoutprej§2537. II. The cause of action stated in the petition was barred in two years after it accrued, (Code, § 2529,) unless saved by section 2537 of the Code, which is as follows: “ If, after the commencement of an action, the plaintifl tail therein tor any cause except negligence in its prosecution, and a new suit be brought within six months thereafter, the second suit shall, for the purposes herein contemplated, be deemed a continuation of the first.” As this action was commenced within six months after the action was dismissed in the federal court, the only question to be determined is whether this action is barred by the statute of limitations.

It will be observed that the statute provides that if the plaintiff fails in the action another may be brought. Is the voluntary dismissal of the action such a failure as is contemplated by the statute? A voluntary dismissal under compulsion may be. For instance, it is possible that the plaintiff, without negligence on his part, may not be ready to try the case, and yet be unable to obtain a continuance; and in such case, if the other party insists on a trial, and the court orders it to proceed, the plaintiff might under such compulsion dismiss his action, and commence a new action, which .should be deemed a continuation of the first. But suppose the plaintiff voluntarily dismisses the action for any reason, but not under any compulsion whatever, can it be said that he has failed in the action? How can it be said that he has failed until he has made at least some effort to prepare and try his action? If he fails to prepare his case for trial, and dismisses it for this reason, he is clearly guilty of negligence.

The plaintiff in the case at bar dismissed his action because he believed that he could not obtain a fair trial in the federal court. This is not a traversable fact. It cannot be tried and determined. The demurrer only admits such facts as are well pleaded. Suppose the plaintiff had proceeded to trial in the federal .court, and a jury had been impaneled, and the plaintiff then concluded that he could not obtain a fair trial before such jury, and therefore dismissed his action, and then commenced this suit, could the question be determined in this action whether the plaintiff’s conclusion at the time he dismissed the former action was well grounded or not? We think not; because what the plaintiff' may have believed is entirely immaterial and not traversable. In our opinion, public policy would prevent such an inquiry. We deem it proper to say that it is not alleged that there was any fraud or corruption on the part of the federal court; but because of the existence of matters which, if brought to the attention of the court, could and would have been corrected or punished as a contempt, the plaintiff conceived the belief that a fair trial could not be had in such court. If it be conceded that he was correct, it is simply his misfortune. The ease was legally in the federal court for trial, and the defendant-had the legal right to have it tried in such court. If the plaintiff can be permitted to say that he believes he cannot have a fair trial in that court, the defendant, with equal propriety, could say that it could not obtain a fair trial in the state court. And it may well be assumed that the parties, unless compelled by law to do so, would never agree on a tribunal and have the cause tried.

Affirmed.