By the Court,
Fitzgerald, J.:This is a proceeding for mandamus to respondent to make apportionment of public school moneys to the above-mentioned school district. On demurrer to the answer to the petition, this court held insufficiency of the facts stated to *39prevent the issuance of a writ of mandate, but permitted the respondent to amend her answer. On the coming in of the amended answer the relators moved to dismiss the proceeding " without prejudice.”
Counsel for respondent resists the motion on the ground that respondent in her amended answer asks affirmative relief, to wit, that respondent have judgment against relators for moneys theretofore improperly and unlawfully apportioned and paid to said district during the term of respondent’s predecessor in the office of superintendent of public schools of said county.
In his brief counsel for respondent admits that such affirmative relief cannot be had in that proceeding, but asks that the proceeding be not dismissed "without prejudice.” We think, under the statute, relators have the right to dismissal. Section 3246, Comp. Laws, 1900," is, so far as applicable to this matter, as follows: "An action may be dismissed, or a judgment of non - suit entered in the following cases: First— By the plaintiff himself at any time before trial, upon the payment of costs, if a counter claim has not been made,” etc. The fact that respondent makes a counter claim that even her counsel admits cannot be set up in the proceeding does not change the situation. It is precisely as if a counter claim had not been made.
Relators’ motion to dismiss without prejudice is granted on their paying to respondent her costs up to the time of making said motion to dismiss; respondent is to pay relators’ costs after the time relators made their said motion to dismiss.