
    272 P.2d 194
    KEMPER et al. v. CLARITE BATTERY, Inc.
    No. 8124.
    Supreme Court of Utah.
    July 9, 1954.
    Sandgren & Blackham, S. E. Blackham, Provo, for appellant.
    Stewart, Cannon & Hanson, Don J. Hanson, Salt Lake City, for respondent.
   CROCKETT, Justice.

The material facts of this case are substantially the same as those of Bunting Tractor Co., Inc. v. Emmett D. Ford Contractors, Inc., 2 Utah 2d 275, 272 P.2d 191, published above, except that defendant had not filed its cost bond before the motion to dismiss was made but proffered one immediately thereafter. In this case the trial court dismissed the action “without prejudice.”

Defendant here urges that the dismissal should have been “with prejudice” on the basis of the same rationale as set forth in the Bunting case. For the reasons stated therein we are of the opinion that Judge Jeppson wisely and justly added “without prejudice” to his order of dismissal.

Affirmed. Costs to respondents.

McDonough, c. j., and wade, j., concur.

HENRIOD, Justice.

I concur for the same reasons and register the same observations as are found in my concurring opinion in Bunting Tractor Co., Inc., v. Emmett D. Ford Contractors, Inc., 2 Utah 2d 275, 272 P.2d 191.

WORTHEN, J., concurs in the views expressed bv HENRIOD, J.  