When the plaintiff rested he had failed to prove facts sufficient to entitle him to recover, in this, that he did not prove that plaintiff, administrator, in whose name the action was brought, was the duly qualified and acting administrator. Sec. 15-366, I.C.A. Having failed to prove facts sufficient to entitle him to any recovery, defendant interposed a motion for nonsuit. The statute specifically provides that a dismissal by the court upon motion of the defendant, when the plaintiff fails to prove a sufficient case to entitle him to a judgment, is a bar to another action upon the same cause of action. Sec.7-705, subsec. 5, I.C.A. The insertion in the judgment of the words "without prejudice" was unwarranted under the statute, without force or effect, and purely surplusage.
It will be noticed that appellant absolutely restricts his appeal to the two words added at the end of the judgment of nonsuit, namely, "without prejudice." Appellant has no right of appeal from that part of the judgment, because it was no part of a valid judgment.
The record is anything but clear as to just what happened. Respondent, plaintiff *Page 396 below, learned near the conclusion of the trial that the certificate of appointment as special administrator did not comply with sec. 15-366, I.C.A. In other words. the certificate did not show that the letters of administration had not been revoked, or the bond of said administrator had not lapsed, or some act had intervened whereby he had ceased to be special administrator and, therefore, not qualified to maintain the action. In this predicament counsel for respondent, in effect, asked the court for further time within which to obtain and submit competent evidence to establish the qualifications of the administrator to maintain the action. No order for continuance was granted, but the court, in which the power rested, granted a motion for nonsuit under the provisions of sec. 7-705, subsec. 5, I.C.A., and dismissed the action. The court had a question of law squarely presented to it, and ruled upon the question by granting the motion for nonsuit, thus creating a bar to another action upon the same cause of action.
I appreciate that under the old practice the granting of a nonsuit without prejudice did not operate as a bar to another action upon the same cause of action, but sec. 6830, C.S., [now sec. 7-705, I.C.A.] was amended by Chap. 13, Sess. Laws, 1931, changing the statute to its present form.
In discussing a statute of similar import as sec. 7-705, supra, the Supreme Court of Washington, in Dunkle v. Spokane Falls N. Ry. Co., 20 Wash. 254, 55 P. 51, discussed the reason that justified a change in the old practice.
From what has been said this appeal should be dismissed.
I am authorized to say that MILLER, J., concurs in this dissent.