One of the errors assigned is “that the court below erred in dismissing the cause as it stood upon the pleadings without consent of defendant company; but said cause should have been allowed to go to the jury, and he finally determined upon the facts proved and admitted.” The court below committed no error in dismissing the action upon the plaintiff’s motion. The Code of Oivil Procedure provided, then as now, that an action might be dismissed, or a judgment of nonsuit entered, by the plaintiff himself, at any time before tidal, upon payment of costs, if a counter-claim had not been made. Code Civil Proc. p. 48, § 141. The motion of plaintiff to dismiss his suit was made and the suit was dismissed before trial. It was likewise dismissed, as shown by the order of dismissal, “upon payment of all costs accrued herein.” The plaintiff was entitled, as a matter of right, to this order. Hancock Ditch Co. v. Bradford, 13 Cal. 637; Plant v. Fleming, 20 Cal. 93. The above-cited cases arose upon a similar code provision, and are decisive of all the questions presented by the assignment of errors.
It Was within the discretion of the court to dismiss the plaintiff’s suit without prejudice. Judgment affirmed.
Affirmed.