On Petition for Rehearing, filed April 26, 1916.
Per Curiam.Counsel for appellant has filed a petition for rehearing, which is entitled to brief notice. His major premise to the effect that plaintiff’s attorney voluntarily dismissed the actions is, as we view it, unsound. It is in effect so stated in our opinion. Our reason for deeming it unsound is briefly that appellant’s construction of what took place is unwarranted. A fair construction of the record discloses that plaintiff’s attorney in effect merely informed Judge Cooley in their long-distance ’phone conversation that under the circumstances there was nothing for him or his client to do but to submit to a dismissal. Why *7should he be held under the facts to have voluntarily moved for a dismissal rather than merely submitting to what he deemed the inevitable, to wit, a dismissal by the court on its own motion for failure of plaintiff to appear and prosecute his case ? Plaintiff’s counsel had absolutely nothing to gain, and possibly something to lose, by putting his client in the situation of voluntarily dismissing the actions, rather than submitting to a dismissal by the court for nonappearance. But, even if counsel for plaintiff had been personally present in court and had formally moved to dismiss the actions, the result would be the same; for concededly no order or judgment had been entered on such motion, and no record made other than in the minutes of the court, and manifestly, therefore, the court still retained jurisdiction to deal with the situation as it did. It would be nothing less than a travesty on justice to hold that under the conceded facts in this record, the trial court was shorn of all power and jurisdiction to do justice between these parties by reinstating the actions for trial upon terms. The petition is denied.