I am unable to agree with the majority opinion and therefore respectfully dissent. It is my judgment that the statutes as set forth in the majority opinion do not justify or authorize a dismissal "without prejudice" under the facts in this case, and as results from the majority holding. The dismissal did not say it was "without prejudice." There was a trial of the first case and as stated in Code section 11563, 1939 Code of Iowa, "In all other cases [where there is no dismissal as provided by section 11562] upon *Page 688 the trial of the action the decision must be upon the merits." The trial court may have intended to set aside the submission or thought it was doing so but that is not what it did. The majority opinion follows certain cited cases, which in part appear applicable. I respectfully state that I believe it should be this court's duty to follow the statute. There is no statutory authority for the action as is now approved by the majority opinion. If the legislature has not provided for such action as was followed by the trial court it should be the responsibility of the legislature to correct this fault. I trust that I am not narrow in my conception of a court's duty and province but it seems to me we would be doing much to preserve our traditional theories of government if the courts adhered to the principle of interpreting the laws rather than assuming the responsibility of adding to them where there is no law that meets the immediate problem before the court. I would reverse.
I am authorized to state that SAGER, J., joins in this dissent.