This is an appeal from a final judgment of non-suit and for costs entered by the Circuit Court in and for Baker County, taken on March 11, 1963. Appellees brought a tort action against appellant and a co-defendant seeking damages for personal injuries alleged to have been caused as a result of the negligence of appellant and his co-defendant. The issues were raised by the pleadings, and extensive discovery procedures, including interrogatories and depositions, were taken between the parties over a years period. The case came on for trial with counsel for all parties present, a jury was impaneled and sworn to try the issues of fact raised by the pleadings, and immediately thereafter appellees moved for a non-suit. Thereupon appellant Dobson moved the court to enter judgment with prejudice against appellees. The motion was denied with the trial judge stating that he recognized the taking of the non-suit by appellees-plaintiffs and declaring that he would enter a judgment for appropriate costs against them. He discharged the jury by announcing to it that a non-suit had been taken. Thereafter appellant Dobson filed praecipe for the taxing of costs in the total amount of Three Hundred Fifty-five Dollars and Ninety-nine Cents ($355.99), which included expenses for the taking of certain depositions by him. The trial judge taxed costs against the appellees-plaintiffs in the sum of One Hundred Sixty-four Dollars and Fifty-six Cents ($164.56), but disallowed the expenses incurred in connection with the taking of the depositions. The assignments of error raise the question as to whether or not the lower court erred in permitting appellees-plaintiffs to take a non-suit without judgment on the merits against them, and in denying appellants motion for the entry of a judgment of dismissal with prejudice. The answer to this question is inherent in the answer to the question as to whether or not a plaintiff is entitled, as of right, to take a voluntary non-suit under the 1954 Rules of Civil Procedure, 1962 Revision, and without prejudice.
