25-602 Dismissal without prejudice; by plaintiff in vacation; exceptions; payment of costs. - Nebraska Statutes

25-602. Dismissal without prejudice; by plaintiff in vacation; exceptions; payment of costs.The plaintiff, in any case pending in the district or Supreme Court of the state, shall, when no counterclaim or setoff has been filed by the opposite party, have the right in the vacation of any of said courts to dismiss his said action without prejudice, upon payment of costs, which dismissal shall be, by the clerk of any of said courts, entered upon the journal and take effect from and after the date thereof. SourceLaws 1867, § 1, p. 51; R.S.1913, § 7655; C.S.1922, § 8599; C.S.1929, § 20-602; R.S.1943, § 25-602.AnnotationsNo case addressing the right of a party to dismiss pursuant to section 25-601 has required the party to pay costs pursuant to this section. Without a motion for attorney fees pending, such fees would not be a part of the costs to be paid under either section 25-601 or this section. Kansas Bankers Surety Co. v. Halford, 263 Neb. 971, 644 N.W.2d 865 (2002).Plaintiff had right to dismiss without prejudice to take advantage of amended statute on venue of action. Grosc v. Bredthauer, 136 Neb. 43, 284 N.W. 869 (1939).Dismissal after final submission of case must be by order of court entered on journal. Knaak v. Brown, 115 Neb. 260, 212 N.W. 431 (1927).Filing petition for appointment of administrator is not an "action." In re Estate of Glover, 104 Neb. 151, 175 N.W. 1017 (1920).Section is applicable to election contest; cannot set aside dismissal without notice to contestant, to allow another to intervene. Moore v. Waddington, 69 Neb. 615, 96 N.W. 279 (1903).Dismissal before appearance by defendant ends case. Sims v. Davis, 48 Neb. 720, 67 N.W. 765 (1896).Right to dismiss is not absolute, but depends upon payment of costs. Sheedy v. McMurtry, 44 Neb. 499, 63 N.W. 21 (1895).After case is submitted, power to dismiss without prejudice ceases. Sharp v. Brown, 34 Neb. 406, 51 N.W. 1030 (1892).Where there is no setoff or counterclaim, and costs are paid, court cannot at next term permit intervention. Harris v. Cronk, 17 Neb. 475, 23 N.W. 341 (1885).