*172Dissenting Opinion
Gonas, J.This case is not barren of difficulty.
I cannot agree with the prevailing opinion because plaintiff had no right to dismiss his complaint in the trial court as the trial court loses jurisdiction when an appeal is perfected to the Appellate Court, therefore, the case in this court is not moot, and the provisions of the Indiana Anti-Injunction Act, Burns’ §§40-501, 40-513, should be applied in deciding this case on its merits.
Burns’ §2-901 provides that an action may be dismissed without prejudice by the plaintiff at any time before the finding of the court is announced. Special findings of fact were required in the case before us. Cases construing this section have held that where special findings of fact are required, the right of plaintiff to dismiss is cut off when the special findings are announced. In Halstead v. Sigler (1905), 35 Ind. App. 419, 427, 74 N. E. 538, it was stated:
. . Where a case is tried before the court, and a-special finding of fact is demanded, plaintiff may dismiss his cause of action or any part thereof, at any time before such special finding of facts is announced. It is the announcement of the special finding after it has been reduced to writing which cuts off the right of dismissal. (Our emphasis.)
The trial court announced the special findings in the case before us long before the plaintiff attempted to dismiss its complaint. The special findings were announced on February 9, 1959. Plaintiff attempted to dismiss its complaint on April 13, 1961, which was one week before the date assigned for oral argument of the case in this court.
The right of plaintiff to dismiss its complaint is cut off if it is not exercised within the time allowed. Randles *173et al. v. Randles (1878), 63 Ind. 93. In this case, our Supreme Court said, with reference to what is now Burns’ §2-901, supra:
“. . . The implication from this provision is so strong, we think, as to amount to a positive declaration, that a plaintiff may not dismiss his action after the finding of the court on the trial has been announced, except with defendant’s consent and with leave of the court. . .
The trial court is without jurisdiction to proceed with the case in any matter that tends to upset the jurisdiction of this court. Cirtin v. Cirtin (1927), 87 Ind. App. 457, 458, 161 N. E. 709. O’Malley v. Hankins et al. (1935), 207 Ind. 589, 598, 192 N. E. 168.
The record before us shows that defendant did not consent to the dismissal by plaintiff, and that defendant had no knowledge of the dismissal, thus plaintiff had no right to dismiss its complaint. See 89 A. L. R. 13, and 126 A. L. R. 284, for two extensive articles discussing dismissal and non-suit.
Having concluded that the plaintiff had no right to dismiss its complaint in the trial court, the case is not moot in this court and should be considered on its merits..
The Supreme Court of Indiana held that the matter before us grew out of a labor dispute, Fair Share et al. v. Kroger Co. et al. (1960), 240 Ind. 461, 165 N. E. 2d 606, which holding was not novel, and followed the opinion of Justice Roberts of the Supreme Court of the United States in New Negro Alliance v. Grocery Co.(1938), 303 U. S. 552, 58 S. Ct. 703, 82 L. Ed. 1012.
A consideration of the merits of this case demands the Application of the terms of the Indiana Anti-Injunction'Act, Burns’ §40-501 et seq. which denies the courts of this state jurisdiction to issue any restraining *174order or temporary or permanent injunction without first complying with certain stated conditions.
The facts are: the Kroger Company, an Ohio Corporation, which operates retail stores for the sale of groceries in and about Gary, Lake County, Indiana, instituted this litigation by filing its verified complaint seeking, inter alia, an inj unction against the Fair Share Organization (an unincorporated association, which operates in and about Gary, Lake County, Indiana), and certain individuals from alleged unlawful picketing of three Kroger Stores, located in and near Gary, Indiana.
The Fair Share Organization and the individuals filed their verified answer, averring, among other things, that the relief sought by Kroger was prohibited by Indiana’s Anti-Injunction Act, and that they were engaged only in peaceful dissemination of information regarding a labor dispute.
On November 12, 1958, the trial court conducted a hearing and heard evidence presented by the Kroger Company. Toward the end of the hearing and immediately after a brief recess the court made the following announcement:
“I believe inasmuch as we are goini to proceed next Tuesday about ten thirty A.M. I will issue the temporary restraining order, being of the opinion that an emergency does exist which justifies the extension of a restraining order. Being also of the opinion that a restraining order should issue until the issues here are classified and proper parties made, also being advised that there is a petition to intervene on behalf of a certain labor organization that has to be heard and that we should preserve the status quo of the case until we can go into all of the various problems that have presented themselves today; we have heard the evidence, and believe in fairness to all concerned we should not take any steps that are not gone into with evidence, and with proper authorities. I be*175lieve the court has the power to issue a restraining order temporarily until we can get to the meat of the problem which I will do and we will take up againiat 10:30 next Tuesday and resume the — I believe we will take up next Tuesday on all of the remaining motions and then go into the matter of the evidence in the main case. Also, the matter of the parties. The petition to intervene, the motions to strike that remain, the objections to the petition for leave to intervene and the verified answer.”
After this, no other evidence was offered or introduced.
Thereafter, the court issued a temporary injunction prior to making and filing his findings of fact as required by Burns’ §40-509, this, I submit, was error.
Burns’ §40-509 (1952 Repl.) provides:
“No restraining order or temporary or permanent injunction shall be granted in any case involving or growing out of a labor dispute, except on the basis of finding of facts made and filed by the court in the records of the case prior to the issuance of such restraining order or injunction.
Appellants have as much right to prosecute their appeal to final determination in this court as the plaintiff has to prosecute his action to final determination in the trial court.
As noted above, our Supreme Court held that the picketing involved in this case grew out of a labor dispute. Fair Share et al. v. Kroger Co. et al., supra. Where a labor dispute precipitates picketing, an injunction may issue to restrain that picketing only in accordance with the terms of the Indiana Anti-Injunction Act. Bums’ Ind. Stat. §40-501 et seq. State ex rel. Taylor v. Circuit Court of Marion County (1959), 240 Ind. 94, 162 N. E. 2d 90. In Blackburn v. Koehler *176(1957), 127 Ind. App. 397, 140 N. E. 2d 763, Judge Cooper of this court held that it was error for the trial court to grant an injunction restraining picketing which grew out of a labor dispute without first making a finding of facts. The judgment of the trial court should be reversed on the basis of the authorities above cited.
Note. — Reported in 176 N. E. 2d 205.