The appellant has filed five specifications of error, as follows: “(1) The court erred in dismissing the case. (2) The court erred in not allowing the plaintiff to amend the proceedings. (3) The court erred in not allowing the plaintiff to state wherein she desired to amend the proceedings. (4) The court erred in refusing to reinstate the case, and in overruling plaintiff’s motion to reinstate. (5) The court erred in overruling plaintiff’s motion for a new trial.”
The first assignment of error is that the court erred in dismissing the case. Section 5102, Mansf. Dig. (§3307, Ind. Ter. St. 1899), under the heading of “Pleadings and Practice,” provides when a case can be dismissed by the court and when by the plaintiff. It is as follows: “An action may be dismissed without prejudice to a future action: First. By the plaintiff before the final submission of the case to the jury, or to the court, where the trial is by the court. Second. By the court where" the *459plaintiff fails to appear on the trial. Third. By the court for the want of necessary parties. Fourth. By the court on the application of some of the defendants, where there are others whom the plaintiff fails to prosecute with diligence. Fifth. By the court for disobedience by the plaintiff of an order concerning the proceedings in the action. In all other cases, upon the trial of the action, the decision must be upon the merits.” The second, third, fourth, and fifth subdivisions of said section provide in what eases the court is authorized to dismiss an action. It appears that the appellant was present at the trial. It does not appear that the court dismissed for the want of necessary parties. It docs not appear that there were any defendants whom the appellant failed to prosecute with diligence, and it does not appear from the record that appellant was charged with the disobedience of any order of the court concerning the proceedings in the action; and in all other cases, except when dismissed by the appellant himself, the decision must be upon the merits. It therefore appears that under the provisions of this statute the court was not authorized to dismiss. It appears that the original complaint was filed Hay 23, 1900; that summons and writ of possession was issued and returned June 12, 1900; that appellant gave bond and appellee gave bond, and kept possession of property; that on December 7, 1900, appellee answered, and on February 12, 1901, without any leave of the court withdrawing answer, filed a demurrer to the complaint. It does not appear, however, that the same was passed upon by the court, and on December 4, 1901, appellant filed an amended complaint. On March 11, 1902, appellee filed motions to quash writ of possession, and to dismiss the action, and on the same day said motions were overruled by the court. On the next day ■ — March 12, 1902 — appellee filed demurrer to amended complaint and a motion to dismiss the aciion and quash the writ of possession. On the same day appellant asked leave to amend complaint, which was refused by the court, to which appellant *460excepted, and on the same day said demurrer was overruled by the court, to which appellee excepted. The motion to dismiss the suit and quash writ of possession are the same, in substance, as the motions ma'de the day previous, March 11, 1902, and overruled by the court to which appellee excepted. It does not appear from the record that the order overruling said motions had been set aside, modified, or interfered with in any respect, but, notwithstanding they were thus fully determined as above stated, the same motions were made the succeeding day, and were sustained by the court, to which appellant excepted. .Said motions are as follows: “Motion to Dismiss and Quash Writ of Possession. Come now the defendants and move the court to dismiss the action and quash and vacate and set aside the writ of possession herein for the following reasons, and upon the following grounds, that is to say: That at the time this writ was issued there was no action pending in this court as required by faw. There was no such complaint or statement in writing filed in the office of the clerk of this court as required by law, under Section 3351 of Mansfield's Digest (§ 2285, Ind. Ter. St. 1899), and at the time of the issuance of said writ and prior thereto there was no affidavit filed by plaintiff, nor of some other credible person for her, as required by law; and there has never been any affidavit filed in this action whatsoever, as absolutely required by law as a condition precedent to the issuance of said writ. That for these reasons this court has no jurisdiction of the subject matter of the action nor of the persons of the defendants, and there is no action properly before the court. (2) That the plaintiff has not the capacity to sue for the minor for the reason that the father of said minor is the lawful guardian of his children so long as he lives, and they are minors, and the father of the said minor is one of the defendants herein; and, the premises in question being the property of the father, the mother is powerless to act as guardian in the lifetime of the said'minor plaintiff, Lydia Smith, without first obtain*461ing letters of guardianship and giving bond as required by law, under Section 3465 of Mansfield's Digest (§ 2361, Ind.'Ter. St. 1899.) (Signed) Preston S. Davis, Atty. for Defendants.” The court having overruled the demurrer to the amended complaint, it was evident that the complaint complied with section 3351 Mansf. Dig. (section 2285, Ind. Ter. St. 1899); and, if the affidavit did not comply with that provision of the statute, it was susceptible of amendment by the appellant. In Landfair vs Lowman (Ark.) 8 S. W. 188, the court, in passing on an attachment, affidavit says: “If the objection had been made and sustained by the court on the ground that the affidavit was insufficient, leave to amend and cure the defect must have been extended to the plaintiffs, as we decided in Sannoner vs Jacobson, 47 Ark. 31, 14 S. W. 458.” The appellant having given a bond before the writ of possession issued, and the appellee, without objecting to the sufficiency of the affidavit, having given a counter bond, it is exceedingly doubtful if appellee had not waived his motion to quash on the ground of a defective affidavit; but, the court, having held the complaint good, was not the appellant entitled to a trial regardless of any error or defect in the affidavit? Section 5083, Mansf. Dig. (§3288, Ind. Ter. St. 1899), says: “The court must, in every state of an action dirsegard any error or defect in the proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.” We are of the opinion that the court inadvertently overlooked the provisions of these statutes, and that, therefore, the case must be reversed, with directions to the lower court to set aside the order dismissing the case and reinstate the same, and proceed according to law.