
    Central Ice Cream Co., Plaintiff-Appellee, v. Goldenrod Ice Cream Company, Edward L. Olin and Philip D. Sang, Defendants-Appellants.
    Gen. No. 47,315.
    First District, Third Division.
    May 7, 1958.
    Released for publication July 18,1958.
    Rose, Burt & Pierce of Chicago (Grover D. Rose, of counsel) for defendants-appellants, of counsel.
    
      William C. Wines, J. Stirling Mortimer, and Daniel J. Ryan, of Chicago, for appellee.
   PRESIDING JUSTICE BURKE

A complaint in chancery alleged unfair competition and violation of Illinois laws relating to the letting of public contracts. It sought a temporary and permanent injunction restraining the defendants from a continuance of the alleged unlawful practices and damages. After the taking of evidence on plaintiff’s motion for a temporary injunction, the court denied the motion. Defendants moved to have the case set for hearing or referred to a master for hearing. Plaintiff moved to dismiss without prejudice. Defendants objected. The chancellor entered an order finding that no hearing had begun within the meaning of Section 52 of the Civil Practice Act [Ill. Rev. Stats. 1957, ch. 110, § 52] and granted plaintiff’s motion to dismiss without prejudice and an order of dismissal without prejudice on payment of statutory costs was entered. Defendants appeal.

Hearings on plaintiff’s motion for a temporary injunction were held on 11 court days and the testimony of 11 witnesses was taken. Twenty-seven documentary exhibits were received in evidence. The transcript of these hearings ran to almost 1,000 pages. The hearings were all before the chancellor. The court acted on the authority of the provision of Section 52 of the Civil Practice Act, which states that the plaintiff may,. at any time before trial or hearing begins, upon notice to each party who has appeared or his attorney, and upon payment of costs, dismiss his action or any part thereof as to any defendant, without prejudice. Defendants maintain that the taking of evidence in the case constituted the beginning of a trial or hearing within the meaning of Section 52; that plaintiff’s motion to dismiss amounted to an abandonment of its case; and tbat tbe court having beard evidence and having indicated its findings, defendants were entitled to a decree based upon tbe evidence. Tbe defendants ask that the order be reversed and that tbe cause be remanded with directions to enter a decree finding tbe issues in their favor.

We are of tbe opinion that tbe record supports tbe bolding of tbe chancellor that tbe motion of tbe plaintiff to dismiss without prejudice was made before tbe trial or bearing began. Tbe defendants rely strongly on a stipulation that “tbe evidence taken and to be taken in connection with plaintiff’s motion for a temporary restraining order should be considered as evidence taken on tbe merits of tbe case.” We do not think that tbe stipulation to use tbe testimony on a trial of tbe case converted tbe application for a temporary injunction into a trial or bearing on tbe merits. Tbe stipulation indicates that tbe parties recognized that tbe case was not being beard on tbe merits. Tbe hearing or trial bad not begun and tbe chancellor was right in allowing plaintiff’s motion to dismiss without prejudice.

Therefore tbe order of tbe Superior Court of Cook county is affirmed.

Order affirmed.

FRIEND and BRYANT, JJ., concur.  