(concurring specially in the dissent). Plaintiff, respondent here, brought an ordinary action to quiet title. Defendant, appellant here, answered by setting up a defense- and counterclaim. To defendant’s counterclaim plaintiff replied without objection to- any of the pleadings. The case was completely tried, and several months after the trial plaintiff moved to dismiss the action, which motion was granted.
I concur in the result reached by Judge DTLLO'N that the *285count should be reversed, and base my concurrence upon the following grounds.
First, it was manifest error to permit plaintiff to dismiss his action over defendant’s objection without a decision upon defendant’s counterclaim.
Second, to put the parties to the expense of a complete trial of the cause and to permit both sides to complete the trial at the expense of the county and litigants, and then to permit the case to be dismissed, is an, abuse of discretion and trifling, not only with courts, but with justice itself.