Hardy v. Janssen , 252 Or. 608 ( 1969 )

PEE CUBIAM.

In Haworth v. Ruckman, 1968, 249 Or 28, 436 P2d 733, we held that OES 12.220 permits the refiling of an action within one year following a dismissal by non-snit only when the non-snit is granted after the beginning of a trial of an issue of fact. In the instant case plaintiff took a voluntary non-suit before the trial started. "When he refiled the ease it was dismissed because of the statute of limitations. He appeals that decision. He attempts to distinguish the Haworth decision on the basis that here the trial court suggested he ask for a voluntary non-suit when plaintiff had requested a continuance. The request for the continuance and the judge’s suggestion were by telephone conversation and, of course, ex parte. Plaintiff had no right to rely on the judge to preserve his case against the running of that statute of limitations. It was the duty of the attorney to ascertain the consequences of the voluntary non-suit.

In the Haworth case we said that the reason for limiting OES 12.220 was that a non-suit before trial may be taken by plaintiff as a matter of right and is, therefore, voluntary and not a dismissal, and that a non-snit after the trial has begun is a judgment of the court and is a dismissal in the context of OES 12.220. The added distinction suggested by plaintiff is not valid.

Affirmed.