
    STATE EX REL. TIBBALS v. DISTRICT COURT OF NINTH JUDICIAL DISTRICT IN AND FOR FREMONT COUNTY, ET AL.
    (No. 1667;
    Feb. 10, 1931;
    295 Pac. 916)
    For the relator there was a brief by John J. Spriggs, of Lander, Wyoming, in support of the motion for judgment on the pleadings.
    
      No briefs were filed for respondent other than briefs filed by O. N. Gibson, of Riverton, Wyoming, and A. H. Maxwell, of Lander, Wyoming, which were considered at the former hearing.
   Per Curiam.

In considering the petition when challenged by demurrer, we held (42 Wyo. 214, 292 Pac. 897) the alleged facts sufficient to show relator was entitled on his own motion to dismiss without prejudice his action, No. 4212, pending in the District Court of Fremont County, and that, on the District Court’s refusal to permit the dismissal, relator was entitled to relief by writ of mandamus requiring the dismissal of that action and the resulting vacation of an order restraining the execution of a judgment in another action, No. 4182, in the same court.

Since the overruling of the demurrer, an answer has been filed, and plaintiff moves for judgment on the pleadings, contending that the answer contains no denial of material facts which are alleged in the petition and show, as held in our former decision, that relator is entitled to the writ.

The contention must be sustained and the motion granted. The petition alleges facts showing that relator moved to dismiss without prejudice his action No. 4212, at a time when under Section 5879, C. S. 1920, he had that right. The petition contains allegations of some unnecessary details as to what took place at the time relator moved to dismiss. The answer alleges as to the same matter some details inconsistent with those stated in the petition. But it seems clear that the defendant does not intend to deny, and in fact admits, that the motion to dismiss was made before the defendant in the action below had pleaded any set-off or counter-claim which., under Section 5880, would have prevented the dismissal of the action.

The motion for judgment on the pleadings will be granted and the writ for the purpose indicated in the last paragraph of our former opinion will issue. 292 Pac. 897, 901.

Motion Sustained,.  