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HOFFMAN v. BERRY

No. 8264.

139 N.W.2d 529 (1966)

Theodore HOFFMAN, Plaintiff and Respondent, v. Carl E. BERRY, doing business as Berry Equipment Company of Pierre, South Dakota, Defendant and Third-Party Plaintiff and Respondent, v. McGRAW-EDISON COMPANY, a corporation, Third-Party Defendant and Appellant.

Supreme Court of North Dakota.

Rehearing Denied January 21, 1966.

Attorney(s) appearing for the Case

Conmy, Conmy & Feste, Fargo, for appellant.

Burke & Hodny, Grafton, for plaintiff and respondent.

DePuy, Fair & O'Connor, Grafton, for defendant and third-party plaintiff and respondent.

Malcolm D. Young, of Young, Denenberg & Mullery, Omaha, Nebraska, of counsel.

TEIGEN, Judge.

The third-party defendant has appealed from a judgment dismissing the third-party complaint without prejudice and without costs to either party. The motion was made by third-party plaintiff under Rule 41(a) (2), N.D.R.Civ.P., and was resisted by third-party defendant. It is assigned it was error to dismiss without prejudice and without awarding any costs for expense moneys or attorney's fees.

In June 1962 the plaintiff commenced an action against...

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