This is a case made after judgment for the plaintiff, in the Circuit Court for the County of Saginaw.
The declaration was in assumpsit; to which the defendant pleaded in abatement, another action pending in the same court for the same cause of ,- action. The plaintiff re*55plied the discontinuance of the former suit prior to the institution of this, upon which the defendant, in his rejoinder, took issue and put himself upon the country.
This issue was tried without a jury; and being found against the defendant, judgment, quod recuperet, was rendered in favor of the plaintiff, June 26, 1869. On Monday morning, June 28th, before the reading of the journal, the defendant’s attorney filed a written request for a special finding of the facts and conclusions of law touching the questions involved in this issue. This was refused on the ground that judgment had been rendered on the Saturday previous, and that the request came too late. On the 29th day of June, the Court assessed the damages and rendered final judgment.
All the evidence on the trial of the issue tended to show the following state of facts, about which there appears to have been no dispute: — That six days prior to the present suit the following order was entered in the former suit in the common rule book, viz: ‘‘on payment of costs and on motion of H. H. Hoyt, attorney for plaintiff, ordered that this cause be, and the same is hereby discontinued,” (signed by plaintiff’s attorney). That said attorney for the plaintiff (in the former suit) served upon the defendant-a notice of the discontinuance on the day of, but before, the commencement of the present suit, which notice was in the usual and proper form, except that it stated the discontinuance by the plaintiff “with costs to the plaintiff.That at the time of the service of the notice, the attorney for the plaintiff told the defendant he was ready to pay the costs when taxed; that within two hours afterwards the declaration in this suit was served upon the defendant; that the costs in the former suit were not paid, nor did they appear to have been taxed, when the declaration in this suit was served.
It was insisted by the defendant in the Court below, and the same ground is relied upon here, that the former suit could not be legally discontinued, so as to permit the in*56stitution of the present action, until the costs had been actually paid in the former suit. And in support of the position, the defendant relies upon the Circuit Court rule 26 and section 5600 of the Compiled Laws.
If this be the true construction of the statute, and the rule referred to, then the plaintiff can never, in vacation at least, effectually discontinue his action, so as to enable him to institute a new one, except at the option of the defendant ; as he cannot get the defendant’s costs taxed, until the latter sees fit to present his bill for taxation.
But we think this is not the effect of the statute or the rule; but that both must be construed to authorize a discontinuance on the terms of paying costs; and that when notice of the discontinuance has been given, it becomes effectual, and the plaintiff may commence anew. If, however, he should refuse to pay the costs when taxed; he will lose the benefit of the discontinuance under the rule, and the pendency of the former suit will abate the latter; though under the statute alone, without the rule, a judgment would be rendered against the plaintiff in the former suit for costs.
As the statute gives costs to the defendant in all cases of discontinuance, the mistake in the notice of discontinuance “ with costs to the plaintiff” was immaterial. The law gave the costs to the defendant, and knowing the law, he could not be misled by the mistake.
There being no evidence in the case tending to show any other state of facts than that above given, no special, finding could have been made by the Judge, altering their legal effect as above given. Any special finding, therefore which the evidence could possibly warrant, could have been of no use to the defendant, and could not have altered the result. It is, therefore, immaterial to enquire whether the request for such finding was made in due time.
The judgment of the Circuit Court must be affirmed with costs.
The other Justices concurred.