Page:United States Statutes at Large Volume 47 Part 1.djvu/977

 72d CONG RESS. SESS. II. CH. 127 . FEBRUARY 27, 1933 . 953 SEC. 264. THE RELIEF TO BE AWARDED TO THE PLAINTIFF .-The relief Relief granted plain- granted to the plaintiff, if there be no answer, can not exceed that aft. which he shall have demanded in his complaint ; but in any other case, th e court may gran t him an y relief consiste nt with the case made by the complaint and embraced within the issue. SEC. 265. DISMISSAL of ACTIONS AND ENTRY OF NONSUIT.Al action entry of nousait. may be dismissed, or a judgment of nonsuit entered, in the following cases : 1 . By the plaintiff, by written request to the clerk, filed with the papers in the ca se, at any time before the trial, upon payment of his costs • provided, a counterclaim has not been set u, , or affirmative relict sought by the cross-complaint or answer of the defendant. If a p rovis ional remed y has been allow ed, t he un dertak ing m ust thereupon be delivered by the clerk to the defendant, who may have his action thereon ; 2 . By either party upon the written consent of the other ; 3 . By the court, when either party fails to appear on the trial, and the other party appears and asks for the dismiss al ; 4. By the court, when upon the trial and before the final submis- sion of the case, the plaintiff abandons it ; 5. By the court, upon motion of the defen dant, when upon the trial the plaintiff fails to prove a sufficient case. But no dismissal mentioned in subdivisions 1 and 2 hereof shall be entered unless upon written consent of his attorney of record, or if said consent is not obtained, upon order of the court, after notice to the attorney. The dismissals mentioned in said subdivisions 1 and 2 hereof, when written consen t of the attorne y of record of t he party request ing the dismissals are filed, may be made by entry in the clerk's register. The dismissals mentioned in subdivisions three, four, and five of this section must be made by orders of the court entered upon the minutes thereof, and are effective for all purposes when so entered ; but the clerk of the court must note such orders in his register of actions in the case. SEC. 266. DISMISSAL OF ACTION FOR FA IL URE TO ISS UE SUMMONS Failure to issue sum. WHEN .-No action heretofore or hereafter commenced shall be further morn' when . prosecuted, and no further proceedings shall be had therein, and all actions heretofore or hereafter commenced must be dismissed by the court in which the same shall have been commenced, on its own motion, or on motion of any party interested therein, whether named in the complaint as a party or not, unless summons shall have issued within one year, and all such actions must be in like manner dis- missed, unless the summons shall be served and return thereon made within t hree yea rs after the com mencemen t of said action. But all such a ction s may be prosecuted, if appearance has been made by the defendant or defendants, within said three years in the sa me manner as if summons had been issued and served ; provided, that, except in actions to partition or to recover possession of, or to enforce a lien upon, or to determine conflicting claims to, real or personal property, no dismissal shall be had under this section as to any defendant because of the failure to serve summons on him during his absence from the zone, or while he has secreted himself within the zone to prevent the service of summons on him. SEC. 267. ALL OTHER JUDGMENTS ARE ON. THE MERITS.-In all cases Judgments on merits. other than those mentioned in sections 265, 266, and 268, judgment must be rendered on the merits. SEC. 268. DISMISSAL OF ACTIONS :-The court may in its discretion Dismissal of actions. dismiss any action for want of prosecution on its own motion or on motion of the defendant and after due notice to the plaintiff, when-