
    ALEXANDER McCUNE v. WILLIS L. EATON and Others.
    October 11, 1899.
    Nos. 11,854—(149).
    Judgment of Dismissal “Upon the Merits.”
    When plaintiff rested at the close of the testimony on his behalf and before final submission of the case on the trial of the action, it was, on defendant’s motion, dismissed. The clerk thereupon entered judgment of dismissal “upon the merits.” Held, the court erred in refusing, on plaintiff’s motion, to strike out the words “upon the merits,” and thereby render the judgment one merely of dismissal.
    Appeal by plaintiff from an order of the district court for Hennepin county, Elliott, J., denying a motion to modify the form of judgment entered.
    Reversed.
    
      Alexander McCune and Robert A. Eaton, for appellant.
    
      Pierce & Austin, for respondents.
   CANTY, J.

This action was tried by the court and a jury. At the close of plaintiff’s evidence, he rested his case, and thereupon, on motion of defendants, the action was, by order of the court, dismissed. The clerk entered judgment adjudging that the action “is hereby dismissed upon the merits.” Plaintiff moved to correct the judgment by striking out the words “upon the merits,” and appeals from an order denying the motion.

In our opinion, the order appealed from should be reversed. The judgment entered is a bar to the bringing of another action for the cause of action stated in the complaint. This is conceded by both parties, and respondents insist that on the record they are entitled to such a judgment. Gr. S. 1894, § 5408, provides:

“The action may be dismissed, without a final determination of its merits, in the following cases: * * *
Third. By the court, where, upon the trial, and before the final submission of the case, the plaintiff abandons it, or fails to substantiate or establish his claim, or cause of action, or right to recover.”

Section 5409 provides:

“In every case, other than those mentioned in the last section, the judgment shall be rendered on the merits.”

The judgment which should have been entered in this action is that prescribed by the former section, not that prescribed by the latter.

The order should be reversed, and the cause remanded, with directions to the court below to correct the judgment in accordance with this opinion. So ordered.  