dissenting.
Being nnable to bring’ my views into accord with those of my brethren, the reasons that impel me to dissent will be stated.
1. The plaintiffs filed a praecipe for the dismissal of the Gunnison county suit without prejudice, as stated in the majority opinion, and the record shows that the suit was dismissed. Such dismissal was not a bar to the present action.
2. The plaintiffs had an absolute right to dismiss the suit, having paid the costs and no counterclaim having been filed. Code of Civil Procedure, §184. "When one has such absolute right, his reasons for dismissing are immaterial. In re Skinner & Eddy Corporation, 265 U. S. 86, 44 Sup. Ct. 446, 68 L. Ed. 912. He may dismiss, at any time before trial, in order to avoid an adverse ruling either anticipated or already made (18 C. J., p.. 1149), and for the purpose of bringing another suit for the same cause of action. He may bring another suit and dismiss it and bring still another. The abuse of that right may always be prevented by injunction. 14 R. C. L., p. 353. The Code should be liberally construed in favor of the right to dismiss without prejudice. Houston & T. C. R. Co. v. McDade (Tex. Civ. App.), 295 S. W. 318.
3. It is said that, while the plaintiffs had the right to dismiss before the trial commenced, that right ceased upon the commencement of the trial. But there was a mistrial, and a mistrial is equivalent to no trial. Phelps v. Winona & St. Peter R. Co., 37 Minn. 485, 35 N. W. 273; Hayden v. Maine Central R. Co., 118 Me. 442, 448, 108 Atl. 681; State v. Young, 55 N. D. 194, 212 N. W. 857; Baird v. Chicago, R. I. & P. Ry. Co., 61 Ia. 359, 368, 13 N. W. 731, 16 N. W. 207. A mistrial is “an invalid or nugatory trial.” Illinois Oil Co. v. Grandstaff, 118 Okl. *139101, 103, 246 Pac. 832. It remits the case to the status of an untried case, and the plaintiff has the right to dismiss, the same as though there never had been a trial. Phelps v. Winona & St. Peter R. Co., supra. Even where a case has been tried, if a new trial is granted, the plaintiff may dismiss before the commencement of the second trial. Hayden v. Maine Central R. Co., supra. And he may dismiss even after a judgment has been rendered, where the judgment has been reversed and the cause remanded for a new trial. Gardner v. Michigan Central R. Co., 150 U. S. 349, 14 Sup. Ct. 140, 37 L. Ed. 1107; Connecticut Fire Insurance Co. v. Manning, 177 Fed. 893; Bleckley v. White, 98 Ga. 594, 25 S. E. 592; Pence v. Gabbert, 67 Mo. App. 493. And it has been held in those states where an appeal to a higher trial court operates to set aside the judgment of the lower trial court, that the plaintiff, having appealed from a judgment against him, may dismiss the case before trial in the upper court. Goin v. Chute, 126 Ore. 466, 260 Pac. 998, citing many cases; Derick v. Taylor, 171 Mass. 444, 50 N. E. 1038. Denver & R. G. R. Co. v. Paonia Ditch Co., 49 Colo. 281, 112 Pac. 692, is not opposed to this view, for in that case it was held that an appeal to the district court from a judgment of the county court does not vacate the judgment, but merely suspends its execution until the district court otherwise orders. Of course a plaintiff cannot dismiss a case where there is a judgment standing against him. The Constitution protects persons against being twice put in jeopardy for the same offense. A person is in jeopardy when a valid indictment has been found, or a valid information has been filed, and a petit jury has been impaneled and sworn to try the case; and yet so effectually does a mistrial render a trial nugatory, that where a jury is discharged for sufficient cause and a mistrial ordered, the defendant is held not to have been in jeopardy, and therefore may be placed on trial a second time. Simmons v. United States, 142 U. S. 148, 12 Sup. Ct. 171, 35 L. Ed. 968; Thompson v. United States, 155 U. S. 271, 15 Sup. *140Ct. 73, 39 L. Ed. 146; Dreyer v. Illinois, 187 U. S. 71, 23 Sup. Ct. 28, 47 L. Ed. 79; Keerl v. State of Montana, 213 U. S. 135, 29 Sup. Ct. 469, 53 L. Ed. 734.
There having been a mistrial, is it not clear that the plaintiffs had the absolute right to dismiss their suit?
4. But it is said that the mistrial was ordered with the understanding that amendments were to be made, and there is nothing to indicate that permission to have a non-suit entered “would have been granted so that the plaintiffs could file the identical complaint in some other forum of coordinate jurisdiction.” And in the motion to dismiss it is said that counsel for the plaintiffs obtained the order of mistrial for the very purpose of obtaining a rehearing 'before a different judge. Counsel for the plaintiffs denies the intent imputed to him. He says: “When Judge Logan granted a mistrial, it was my firm intention to prepare and file an amended complaint. I worked many days in formulating a draft for an amended complaint. It was my desire and that of my clients to tíave the case tried in Gunnison county. It was only after repeated consultations that we later concluded to dismiss the action in Gunnison and file our complaint here. This was done solely because all of the plaintiffs save one were residents here. The expenses of going to Gunnison and trying the case there were great. Our clients had been worn down and impoverished by years of cruel litigation, and the only question was, how, if possible, they could recoup some of their losses. Believing, as I now believe, that a mistrial is no trial, I dismissed the pending cause. ” We have no sufficient reason to doubt the truth of that statement. The record shows that the dismissal was over nine months after the mistrial was ordered, a circumstance that lends credit to counsel’s explanation. Besides, the trial court denied the motion in which counsel’s motives were impugned.
The question, therefore, is narrowed to this: Should we reverse the judgment of the district court of Denver merely because months after the district court of Gunni*141son county granted the nonsuit on the supposition or understanding that the complaint was to be amended, the plaintiffs, instead of amending the complaint, dismissed their suit? In my opinion, neither reason nor authority justifies a reversal on such ground. The dismissal stands unless and until it is set aside in a proper proceeding and upon a sufficient showing. Even if counsel had been actuated by improper motives and had deliberately violated an order of court in dismissing the action — and such is not the case — -the defendant should have applied to the district court of Gunnison county to have the dismissal set aside and the case reinstated, and, if successful, he then should have pleaded in the Denver action the pend-ency of the suit in Gunnison county. The Denver district court, in this case, had no power to set aside such dismissal and reinstate the former suit in the district court of Gunnison county. As it is, if an application for such relief had been made to the district court of Gunnison county, the record, in my opinion, does not disclose facts that would require, or even justify, such an order.
Twelve men, sitting as a jury, found that the plaintiffs had a just and meritorious case, and returned a verdict for $15,000 in their favor. The trial court, presided over by an able and experienced judge, put upon that verdict the stamp of approval by denying the motion for a new trial and ordering the entry of judgment on the verdict. That judgment should not be disturbed unless the law clearly requires such a course, and, in my opinion, the law does not even justify it.