
    Esther Osborne et al. v. W. E. Davies and John C. Mitchell, Executors, et al.
    
    No. 11183.
    Practice, District Court — Jury in Equitable Action — Ttight to Dismiss. In an action to set aside a will, the court submitted to the jury certain particular qúestions of fact which covered part of the issues in the case. After the jury had answered the questions plaintiff asked leave to dismiss the action without prejudice, which leave was denied. Thereupon the court proceeded, after the jury was discharged, to hear testimony on another issue not passed upon by the jury. Held, that the court erred in its refusal to permit a dismissal of the action.
    Error from Clay district court; R. B. Spilman, judge.
    Opinion filed July 8, 1899.
    Reversed.
    
      Dawes, ITarleness & WulfekuMer, for plaintiffs in error.
    
      Coleman & Williams, for defendants in error.
   The opinion of the court was delivered by

Smith, J. :

This action was brought for the purpose of setting aside the will of Palmer Osborne for lack of mental capacity in the testator, and for the further purpose of having paragraph 9 of the same declared void for uncertainty. The court submitted to the jury three particular questions of fact respecting the mental condition of the testator at the time the will was executed. After the jury were instructed and arguments of counsel made, they returned anwers to the questions propounded and were discharged from further consideration of the case. Thereupon plaintiffs below filed a written motion asking leave to dismiss the action without prejudice, stating that the action was equitable in its nature, triable by the court, and further that the issues were not finally submitted. The motion for leave to dismiss was denied. The case proceeded for hearing before“the court upon the issues which had not theretofore been considered by the jury, the plaintiffs below refusing further to participate in said trial and objecting to the same.

"We think the plaintiffs in error were entitled, as a matter of right, to dismiss their action at the time they applied to the court for leave to do so. In the case of Hudson v. Hughah, 56 Kan. 152, 161, 42 Pac. 704, which was an action to set aside a will, the court said :

“In cases of this character the parties are not, as a matter of right, entitled to a jury, but the issues may be submitted to one for the information of the court, and to relieve it from the burden of determining controverted questions of fact. The court may accept findings in whole or in part, or if not satisfied with them may ignore them and proceed to make findings of its* own upon evidence submitted.” See also Franks, Ex’x, v. Jones, 39 Kan. 236, 17 Pac. 663; Garard v. Garard, 135 Ind. 15, 34 N. E. 442.

The jury acted in a purely advisory capacity. The statute provides that the plaintiff may dismiss his action without prejudice to a future action before the final submission of the case to the jury or to the court where the trial is by the court. (Gen. Stat. 1897, ch. 95, § 393, Gen. Stat. 1889, ¶ 4493.) The trial was before the court. At the time plaintiffs in error attempted to dismiss, a part of the issues had not been submitted to nor decided by the court. In the case at bar the submission to the court and jury were not concurrent acts, and a cause is not finally srrbmitted -until the parties have introduced all the evidence upon the issues made by the pleadings.

The answers of the defendants did not amount to counter-claims upon which they might obtain affirmative relief. The answers ask no more than the law would give the defendants if the will were sustained. They do not ask that anything be taken from the plaintiffs. The legal effect of the answers is a demand that the will be sustained and a construction given to it in accordance with the intention of the testator. (Corlett v. Insurance Co., ante, p. 134, 55 Pac. 844.)

The judgment is reversed, with directions to dismiss the action.  