
    George H. Mathews and another vs. John J. Taaffe.
    October 28, 1890.
    Practice — Dismissal before Trial. — The court may at any time before trial, upon the application of the plaintiff and sufficient cause shown, dismiss an action, although the defendant has made a counterclaim or demanded affirmative relief in his answer.
    Action of ejectment, brought in the district court for Hennepin county. The defendant in his answer denied'plaintiff’s title, pleaded title in himself, pleaded entry and possession under color of title in fee and in good faith and the making of improvements of a value stated, and asked affirmative relief. The averments of the answer were put in issue by the reply. The action having been called fot trial, the plaintiffs moved for a dismissal. • The motion was opposed by defendant, but was granted, and judgment of dismissal was entered, from which the defendant appeals.
    
      Woods é Kingman and Hawley dé Hall, for appellant.
    
      Little & Nunn, for respondents.
   Mitchell, J.

While the plaintiff himself cannot dismiss his action, where a provisional remedy has been allowed, or counterclaim made, or affirmative relief demanded in the answer, yet the court may do so, upon his application and sufficient cause shown, at any time before trial. Gen. St. 1878, c. 66, § 262, subd. 2. This power the court assumed to exercise in this case, and, if it erred in so doing, it was incumbent upon the appellant to make it appear. The record, which consists merely of the pleadings and the judgment of dismissal entered by the clerk, does not disclose what showing was made upon plaintiffs’ application, and hence fails to show that, in granting it, the court committed error.

Judgment affirmed.  