
    TIEDEMAN, Appellant, v. RANNEY, Respondent.
    (213 N. W. 2.)
    (File No. 5888.
    Opinion filed April 11, 1927.)
    Dismissal and Nonsuit — Court Cannot Dismiss On Merits Without Notice, After Granting Motion To Dismiss Without Prejudice.
    Court cannot enter judgment dismissing action on merits -without notice to plaintiff, after granting latter’s motion to dismiss it without prejudice.
    Note. — See, Headnote, American Key-Numbered Digest, Dismissal and nonsuit, Key-No. 79, 18 O. J. Sec. 131.
    Appeal from Circuit Court, Brown County; Hon. Robert D. Gardner, Judge.
    Action by Ruth E. Tiedeman against Thomas P. Ranney. From a judgment of dismissal, plaintiff appeals.
    Judgment vacated' and cause remanded, with directions.
    
      Ed. L. Grantham and H. O. Hepperle, both of Aberdeen, for Appellant.
    
      Corrigan & Walton and Van Slyke & Agor, all of Aberdeen, for Respondent.
   GATES-, J.

' This is an action for damages for malpractice against a physician and surgeon. During the course of the trial, plaintiff moved the court to dismiss the action without prejudice. Such motion was granted. Some two months later the trial court, without notice to plaintiff, entered a formal judgment dismissing the action upon its merits, based upon a recital therein that the court, while having granted the motion to dismiss, had reserved the question as to whether it should be with or without prejudice. Therefrom plaintiff appeals.

The record shows the following written motion and the written ruling of the court thereon:

“Now comes the plaintiff, Ruth E. Tiedeman, and moves the court to dismiss the above-entitled action without prejudice to the bringing of a new action upon the same cause of action.

“Ed. R. Grantham,

“H. O. Hepperle,

“Attorneys for plaintiff.

“The above and foregoing motion is hereby granted, and the above-entitled action is hereby dismissed without prejudice tO' the bringing of a new action upon the same cause of action.

“Done this 27th day of October, 1924.

‘‘By the Court: Robert D. Gardner, Judge.”

“State of South Dakota, County of Brown.

“Filed in my office, Oct. 27, 1924. N. E. Nelson, Clerk of Circuit Court, by C. G. Nelson, Deputy.”

The record also shows the following written minutes of the court:

October 27, 1924.

“Court opened as per recess.

“Ruth E. Tiedeman v. Thomas P. Ranney.

“Plaintiff presents motion for dismissal of case without prejudice. Motion allowed.”

It is therefore clearly apparent that the court was without authority to enter a judgment dismissing the action upon its merits.

The judgment appealed from is hereby vacated, and the cause is remanded, with directions to enter a judgment dismissing the action without prejudice to the 'bringing of another action.

CAMDBERR, P. J., and FODREY, SHERWOOD, and BURCH, JJ., concurring.  