The plaintiff, who is the respondent herein, began this action for the purpose of securing a decree, quieting title to certain real estate situate in Ziebach county, S'. D. The complaint is in the form usually followed in prosecuting actions quieting title.
To this complaint the defendant, appellant herein, interposed an answer, denying the allegations of the complaint, in so far as they alleged that the plaintiff’s title was paramount to the claims of the defendant to an interest in the land. This answer further alleges that the defendant’s interest in the land in controversy arose from the provisions of a certain written contract entered into between the defendant and one D. E. Pennington, under whom the plaintiff claims title to the land.
And the defendant says that, by the terms of said contract, the said D. E. Pennington agreed to- sell the said land to the defendant, and the defendant agreed to buy said land from said D'. E. Pennington, at the agreed purchase price of $4,800, to be paid as follows: $200 at the time of executing the contract; $200 on the first day of March, 1920, $700 on or before the first day of October, 1920; $700 on or before the first day of October, 1921; $700 on or before the first day of October, 1922; and $3,400 on or before the first day of October 1923 — the defendant to have possession of the land on and after O’ctober 1, 1920.
And the defendant further says that he paid the sum of $200 at the time the said contract was executed, the sum of $200 on March 1, 1920, and the sum of $700 on October 1, 1920, as provided in said contract. Ajnd he says that he retained possession of the land in controversy until the 1st day of March, 1922, when
And, as a counterclaim based upon these allegations, defendant demands judgment against the plaintiff for the return of the sum of $1,100, paid by him upon the aforesaid contract, with interest and costs.
To this counterclaim of the defendant the plaintiff interposed a reply consisting of a general denial, coupled with an allegation that the aforesaid D. E. Pennington repossessed and re-entered the premises involved in this action, with the knowledge, consent, and authority of the defendant.
Upon the issues so joined the case went to trial at the April. 1923, term of the circuit court of Ziebach county. Each of the parties submitted evidence and rested, and the case was taken under advisement by the court, and it was agreed that briefs should be presented.
Thereafter, and on the 9th day of June, 1923, a motion was made by the plaintiff to be allowed to dismiss without prejudice. This motion w^s heard on June 22, 1923, and at that time the defendant presented an affidavit in opposition to the motion. In this affidavit defendant sets forth that his answer in the case contains a counterclaim, to which the plaintiff has replied, that under such circumstances the plaintiff has no right to dismiss, and that the defendant would be prejudiced by the granting of the motion.
The trial court granted the motion and entered an order dismissing the action without prejudice.
Within the time allowed by statute the defendant perfected his appeal from the above-mentioned order, and he will hereafter be referred to as the appellant herein.
In his assignments of error, the appellant sets forth several reasons which he contends show that the order appealed from is manifestly prejudicial to the substantial rights of said appellant.
Appellant’s counsel have cited several decisions of this court as supporting their contention that the trial court abused its discretion in granting the motion to dismiss, but in our opinion the cases cited do not present facts similar to those presented in the case at bar.
Under such- circumstances this court- cannot say that the learned trial court abused its- discretion or prejudiced any of appellant’s rights by'the entry of the order appealed from.
The order appealed from, is affirmed.