dissenting.
1. Plaintiff relies upon Section 20, L. O. L., which provides, “When the commencement of an action is stayed by injunction or a statutory prohibition, the time *303of the continuance of the injunction or prohibition shall not be a part of the time limited for the commencement of the action,” contending that the second action could not be maintained pending the appeal from the judgment of nonsuit, and that the time said appeal was pending “shall not be a part of the time limited for the commencement of the action.” We think this is the only question involved. By Sections 68, 71, L. O. L., ajiother action cannot be maintained while a former one is pending between the same parties for the same cause: Hopwood v. Patterson, 2 Or. 51; Crane v. Larsen, 15 Or. 348 (15 Pac. 326). Those sections constitute a statutory prohibition against the commencement of a second action until the first is disposed of, and arrest the running of the statute, under Section 20, L. O. L. Even after the judgment of nonsuit was affirmed, plaintiff could not have proceeded with the second action, since it was prematurely commenced, as held by the Circuit Court. He had no alternative but to wait until the action pending on appeal was disposed of, and the time that he was so delayed cannot be a part of the time limited for the commencement of the action. The action in which the appeal was pending was commenced September 27, 1909, and was disposed of October 10, 1911, which period by Section 20, L. O. L., ‘ ‘ shall not be a part of the time limited for the commencement of the action.” Therefore the present action was not barred by the statute.
The judgment is affirmed. Affirmed.
Mr. Justice Burnettdelivered the following dissenting opinion:
In this case the cause of action accrued May 3, 1909. An action was commenced thereon September 27th of *304the same year. A demurrer to the complaint having been overruled, the case was put at issue, and after the jury had been impaneled and the taking of testimony begun the plaintiff moved for a voluntary nonsuit, which was granted over the objection of the defendant. On Jahuary 18,1910, the plaintiff commenced a second action for the same cause. This proceeding having been instituted within the six months allowed for appeal from the judgment of nonsuit, the defendant contended that under Section 526, L. O. L., the former action was deemed to be pending from the commencement thereof until the final determination upon appeal, or until the expiration of the period allowed in which to take an appeal, and so filed a plea in abatement on the ground of the pendency of the first action. The Circuit Court sustained the plea and dismissed the second action. The defendant appealed from the judgment of nonsuit in the first action, contending that the plaintiff had no right to take a voluntary nonsuit after a trial of the issue of law on the demurrer, or after the commencement of the trial on its merits. In an opinion by Mr. Justice Bean, Mr. Justice McBride dissenting, the court held (60 Or. 48,118 Pac. 185) that, although under such circumstances a plaintiff could not of right take a judgment of voluntary nonsuit, yet it was within the discretion of the court to allow him that privilege, and so affirmed the judgment. After the determination of the cause upon appeal and more than two years after the cause of action accrued, the plaintiff, for the third time, commenced an action by filing the complaint herein, alleging the history of the former actions, to which complaint the defendant demurred, upon the ground that the latest action was not commenced within two years after the injury complained of by the plaintiff. The demurrer was overruled. The defendant declined to plead further, a jury *305was called to assess the damages sustained by the plaintiff, and upon a'verdict in his favor judgment was rendered for plaintiff, and the defendant appealed.
This being an action for personal injury, the statute (Section 8, L. O. L.) requires that an action for the same shall be brought within two years after the cause of action shall have accrued. The defendant contends that it appears upon the face of the complaint “that the action has not been commenced within the time limited by this code”: Section 68, L. O. L. Section 20, L. O. L., reads thus: “When the commencement of an action is stayed by injunction or a statutory prohibition the time of the continuance of the injunction or prohibition shall not be a part of the' time limited for the commencement of the action.” The circumstances mentioned in this section constitute a statutory disability preventing a plaintiff from commencing an action. But Section 22, L. O. L., says: “No person shall avail himself of a disability unless it actually existed when his right of action accrued.” True enough, if it appears upon the face of the complaint, the pendency of a former action for the same cause is ground for demurrer, under Section 68, L. O. L., and by virtue of Section 71 is a basis for a plea in abatement, if the objection does not appear on the face of the complaint. These sections, however, do not themselves constitute a statutory prohibition. They only declare certain advantages which a defendant may take of the situation created by the plaintiff. We have no statute extending the limitation in cases where the action has failed otherwise than upon the merits. Even in states having such a statute, the weight of authority is that the benefit thereof is not extended to cases where the litigant voluntarily discontinues or abandons his action on motion for voluntary nonsuit. The following precedents are instructive on this point: Lawrence v. *306Winifriede Coal Co., 48 W. Va. 139 (35 S. E. 925); Pardey v. Mechanicsville, 112 Iowa, 68 (83 N. W. 828); Shields v. Boone, 22 Tex. 193; Barino v. McGee, 3 McCord (S. C.), 452; Manuel v. Norfolk etc. Ry., 99 Va. 188 (37 S. E. 957); Kock v. Sheppard, 223 Ill. 172 (79 N. E. 52); Archer v. Chicago etc. Ry., 65 Iowa, 611 (22 N. W. 894). It is a state of affairs produced by plaintiff’s own voluntary action, and not a statutory prohibition which prevents his third action being instituted after the expiration of the two years’ limitation. Having of his own accord dismissed his actions, he must bear the resulting burdens attending upon that course. If the plaintiff can begin and dismiss three actions in succession and so piece out the statute of limitations, he can extend that process indefinitely until the defendant’s witnesses have disappeared, or its condition has otherwise changed to its disadvantage. The statute would be thus subordinated to the pleasure of the plaintiff, or possibly to the discretion of the court, a state of affairs the legislative power has not seen fit to countenance.
But even if we should construe a pending action to be a statutory prohibition, the plaintiff could not avail himself of that disability to extend the statute of limitations, because it did not exist when his right of action accrued: Section 22, L. O. L.
The judgment should be reversed and the cause remanded, with directions to the Circuit Court to sustain the demurrer to the complaint.