State, Division of Family Services v. Coholan , 706 S.W.2d 569 ( 1986 )

CRIST, Judge.

Plaintiffs, consisting of the Division of Family Services, Lisa Coholan (mother) and Blake Coholan (minor child) appeal from an order of the circuit court granting Michael Coholan’s (father) motion to dismiss and for sanctions. Plaintiffs assert the circuit court was without jurisdiction to enter the order, because they had previously dismissed the action without prejudice. We reverse.

Plaintiffs filed a three count petition on April 24, 1985. In Count I, mother and minor child sought a declaration of paternity as to minor child. In Count II, mother sought an order of custody of minor child. In Count III, mother and the Division of Family Services sought an order of payment for support of minor child. In her petition, mother stated she had not participated in any other litigation in Missouri or any other state concerning the custody of minor child.

On May 9, 1985, father filed a motion to dismiss and for sanctions. In his motion, father alleged mother had participated in two other proceedings concerning the custody of minor child, one in Canada and one in Missouri. On May 10, 1985, plaintiffs voluntarily dismissed their action without prejudice. On June 18, 1985, the circuit court granted father's motion to dismiss and for sanctions, entering a judgment of $500 against mother. The circuit court also purported to set aside plaintiffs’ May 10, 1985 dismissal without prejudice.

On appeal, plaintiffs claim the circuit court was without jurisdiction to rule on father’s motion on June 18, 1985 because plaintiffs dismissed their action on May 10, 1985. We agree. A plaintiff may dismiss a civil action without prejudice at any time before the introduction of evidence. Rule 67.01. Plaintiffs exercised this right on May 10, 1985. Plaintiffs’ dismissal of their action on this date rendered the subsequent proceedings of the circuit court a nullity. See Garrison v. Jones, 557 S.W.2d 247, 249-50 (Mo. banc 1977).

Father’s motions filed herein are overruled. The circuit court’s order of June 18, 1985 is reversed.

DOWD, P.J., and REINHARD, J., concur.