Special Judge, dissenting in part.
In an opinion prepared by Judge Conner and concurred in by Judge Lewis this Court proposes to remand this case to the Trial Court for the limited purpose of an eviden-tiary hearing on the responsibility of plaintiff for the withdrawal of her counsel of record and, thereafter, whether she exercised due diligence in seeking a new attorney before the day the case was set for trial and was dismissed for want of prosecution.
While I do not disagree with the need for a more adequate record and a remand for that purpose, I am firmly of the opinion that, under the circumstances shown by the record, the Chancellor should have postponed the trial date and should not have dismissed plaintiff’s case without a hearing on the merits.
We are dealing here with the actions of an administrative board or agency that has seized and destroyed property of a private citizen for alleged violation of some of its rules and regulations, without a hearing in court and without a court order granting that power.
The Codes Administration of the Metro Government of Nashville and Davidson County notified Mrs. Barish that certain of her rental houses were not in compliance with certain of their specifications and set time limits for repairs, otherwise said houses would be demolished and removed.
In her complaint filed in Chancery Court she charges inter alia, that she forthrightly endeavored to comply with the orders of the Codes Administration but that “at every turn her efforts to obtain defendant’s building permits for repairs or restoration have fallen short due to the fundamentally unfair actions of defendant and its arbitrary and capricious methods for issuance of these permits.” She charges violation by defendant of the provisions of T.C.A. § 8-4401 et seq.
Being unsure of her rights in the premises she prays (1) for process, (2) a restraining order to prevent destruction of her property, (3) for a declaratory judgment as to the rights and duties of the parties, and (4) a permanent injunction.
By further complaint plaintiff alleges that defendant has wrongfully denied her permission to repair the houses involved in this litigation but has persisted in its determination to destroy same, and, further, that defendant has set about to evict her tenants from the subject properties based on inspections conducted several years ago. Furthermore, that defendant has failed to make any accounting or even a report to her of the lumber and materials in the houses demolished by it or its agents.
An order consolidating three cases involving separate parcels of Mrs. Barish’s property was entered and an agreed order setting the consolidated cases for trial April 1 and 20, 1981.
In the course of this litigation counsel for Mrs. Barish, Poland and Poland, filed a motion on March 20, 1981, to be permitted to withdraw as counsel for plaintiff; and notice was mailed to counsel for defendant and to Mrs. Barish on March 19, 1981, that said lawyers would appear in court on March 27, 1981, to argue the motion.
There is some indication that the motion was heard on March 27. However, the order granting the motion was entered April 1, 1981, the day the case was set for trial. Said order is as follows:
POLAND & POLAND, Attorneys at Law, having given notice on March 12, 1981, that they have terminated representation of the Plaintiff in the above actions and having filed a Motion with the Court requesting such withdrawal, and,
The Plaintiff, Sylvia Barish, having appeared in open Court and announcing that she no longer desires the services of POLAND & POLAND, Attorneys at *957Law, it is hereby ORDERED that POLAND & POLAND, Attorneys at Law are withdrawn as counsel for Plaintiff.
The order of dismissal entered April 13, 1981, is as follows:
This case came on to be heard on 1 April, 1981, before this Honorable Court, and upon the failure of the plaintiff to prosecute her case, the defendant moved to dismiss, which motion, being well taken, was granted by this Court;
It therefore, ORDERED, ADJUDGED and DECREED, that all four of these consolidated cases should be and hereby are dismissed pursuant to Rule 41.02 of the Tennessee Rules of Civil Procedure. The cost of these four consolidated cases are taxed against the plaintiff, for which execution may issue if necessary.
On May 5, 1981, the following order was entered:
This Motion came on to be heard before this Honorable Court on April 24, 1981, requesting an Order preventing the demolition of certain properties and ordering the issuance of certain building permits pursuant to T.C.A. § 7-3-305, and upon the argument of counsel and the entire record, the Motion is not well taken;
It is therefore, ORDERED, ADJUDGED and DECREED that the Motion be and hereby is denied.
Despite the fact that, under our laws, the Court is not under a positive duty in a civil suit to see that a litigant is represented by counsel, even though there is an apparent need for one, under the circumstances shown by this record, I think the Chancellor was not justified in pursuing the course that he did. The taking of private property even under eminent domain proceedings is a drastic remedy and requires close scrutiny by the Courts to see that the owner’s rights are fully protected. Where an administrative board, as in the case at bar, is seeking to destroy the property of a citizen without court sanction, and the citizen then appeals to a Court of Equity for protection and assistance, the duty is certainly equally, if not more, compelling to see that all material facts are fully presented and justice and equity done.
In view of the serious charges made in the several petitions filed by Mrs. Barish in these consolidated cases, and the more or less formal denials in the answers of defendant, it is perfectly obvious that a hearing on the merits was necessary and that Mrs. Barish was in no way qualified to represent herself in such a trial. Thus, to insist on proceeding with a trial when plaintiff’s counsel was relieved of his duty to represent her on the very day of the trial, even though his application was heard four days previously with plaintiff’s knowledge thereof, is not on its face, a proper exercise of the Chancellor’s authority and discretion. This is especially true since plaintiff was there earnestly asking for more time to try to find a lawyer to represent her after having tried unsuccessfully to employ one since her counsel had filed his motion to be allowed to withdraw.
This is certainly not a typical case of dismissal for failure of plaintiff to prosecute. The plaintiff was in Court without a lawyer trying as best she could to protect her rights. Under previous rules a dismissal without a hearing on the merits would have been without prejudice to her rights to reinstitute suit.
But even more important and compelling is the fact that the Chancellor proceeded on the day he allowed plaintiff’s counsel to withdraw from the case to dismiss the cause of action on motion of defendant; without the introduction of any proof, and, actually, in the absence of any written motion to dismiss, hence, of course, without any prior notice to plaintiff of such motion.
I would reverse and remand for a hearing on the merits.
By way of addendum, let me say that if the Chancellor, for reasons not apparent in the record before us, concluded that these consolidated cases should be dismissed with*958out a trial on the merits, then, at most, the dismissal should have been without prejudice.
Under the new rules, 41.02, an order of dismissal which, as in this case, fails to specify whether it is with or without prejudice, is to be construed as being with prejudice.
I would be willing to concur in a decision of this Court that the Chancellor’s order of dismissal be modified so as to recite “without prejudice,” thus concluding this present litigation without the necessity of a remand for further proceedings.