
    Rafael Argüelles Fernández, Plaintiff and Appellee, v. Pedro Cosme et al., Defendants and Appellants.
    No. 6060.
    Argued November 25, 1932.
    Decided December 9, 1932.
    
      Armando A. Miranda for appellants. I Morales Acosta and Molina Dubón & Ochoteco for appellee.
   Mr. Justice Aldrey

delivered tlie opinion of the Court.

This is an action of unlawful detainer wherein defendants confined themselves to file a general denial of the facts alleged in the complaint, and six days after the trial and submission of the case to the court for decision, plaintiff moved for a voluntary dismissal. Acting on this motion, the court entered judgment of nonsnit, with costs hut without including attorney’s fees. Defendants appealed.

According to section 192 of the Code of Civil Procedure an action may be dismissed or a judgment of nonsuit entered in several cases, the first being by plaintiff himself, at any time before trial, except under! certain circumstances not present in this case; and the fourth being by the court when, upon the trial, and before the final submission of the case, the plaintiff abandons it.

In the first class of cases above cited a plaintiff may move for a nonsuit before trial, and since in this case the plaintiff’s motion was filed after trial and after final submission of the case to the court for decision, the court was not authorized to enter the judgment appealed from. Heilin v. Castro, 22 Cal. 100; Casey v. Jordan, 68 Cal. 246; MacDermont v. Grant, 181 Cal. 332; State v. Riley, Supreme Court of Missouri, 118 S.W. 647. Iu the MacDermont case, supra, and cases there cited, the words “before trial” are interpreted in the sense of “before submission,” and it is said that a case is submitted after the court has taken it under advisement for decision upon the closing of the evidence and argument.

Appellee argues that the judgment was based not on the first but on the fourth paragraph of section 192 above cited, and should therefore be affirmed; but this is not so, for the said fourth paragraph refers to the dismissal of the case by the court, and not on plaintiff’s motion, and accordingly is not applicable to this case.

It is not necessary to decide whether the judgment should have included attorney’s fees as part of the costs, this being the second error assigned, inasmuch as the judgment appealed from must be reversed.  