¶1Concurring Opinion
¶2I concur in the result and in the majority opinion; however, I think we should also respond to the contention presented by Appellants in both cases that the allowance of attorney’s fees and witness' fees was permissible under Trial Rule 41 (A) (2). Such rule provides that except as provided in sub-section (1), “… an action shall not be dismissed at the plaintiff’s instance save upon order of the court and upon such terms and conditions as the court deems proper. … (Emphasis ours). The terms and conditions of such a dismissal should ordinarily include the costs of the action. Harvey’s Indiana Practice, Vol. 3, p. 216. Under the federal rules, expenses of the adversary, including reasonable attorney’s fees have been allowed. Harvey, supra, p. 216, citing Wilson v. Jolly (1948), D. C. Tex., 7 F. R. D. 649. The comments of the Civil Code Study Commission relative to this rule, however, indicate that the “terms and conditions” are subject to the judicial and not to arbitrary discretion, and that in exercising its discretion, the court should follow the traditional principle that dismissals should be allowed unless the defendant will suffer some plain legal prejudice, other than the mere prospect of a second lawsuit. Harvey, supra, p. 212. Under this rule, in an appropriate case, the order of dismissal may be with prejudice. The withdrawal of its exceptions by the state amounted to a dismissal with prejudice, inasmuch as the statutory time for filing exceptions had elapsed. Had the exceptions not been withdrawn and the cause proceeded to trial upon the issue of damages, the defendant, nevertheless, could not have recovered its expenses of litigation as items of “costs.” It is my view, therefore, that since such items were not recoverable, *349the order requiring their payment, as a condition of withdrawal, would not lie within the judicial discretion anticipated by the rule.
¶3Note.—Reported in 295 N. E. 2d 799.