Definition
In procedural law, a discontinued action is one that has been removed from the court's active docket — effectively ended without a final judgment on the merits. The term is used interchangeably with "stricken from the docket" and "filed away," signifying that the litigation is no longer pending before the court. Discontinuance may occur voluntarily, at the plaintiff's election, or by court order, and it differs from a dismissal primarily in its procedural origins and, in some jurisdictions, its effect on the right to refile.
Common Language
Modern common usage (Wiktionary): Permanently no longer available for sale; permanently no longer in production.
Historical common usage: Not significantly different from modern — the word carried the ordinary sense of something that has been stopped or interrupted.
The gap matters. In everyday use, "discontinued" suggests something permanently ended — a product line, a service, a practice. In procedural law, discontinuance does not necessarily carry that permanence. A discontinued action may be refiled, subject to applicable statutes of limitations and procedural rules. Researchers encountering the term in legal records should not assume finality merely because the word implies it.
Common Confusion
DISCONTINUED vs. DISMISSED: These terms are frequently treated as equivalent in historical sources and colloquial legal usage, but they are technically distinct. Dismissal typically refers to a court's termination of an action — with or without prejudice — often following a motion or ruling. Discontinuance traditionally refers to the plaintiff's own act of withdrawing or abandoning the suit. In modern practice, many jurisdictions have collapsed the distinction, using "dismissed" as the operative term for both. Historical sources, including Bouvier's, sometimes use the terms as near-synonyms. Researchers should not assume that "discontinued" in an older record corresponds precisely to a modern voluntary dismissal without prejudice.
DISCONTINUED vs. NONSUITED: A nonsuit is a judgment entered against a plaintiff who fails to appear or fails to produce sufficient evidence. Discontinuance is the plaintiff's affirmative act of withdrawing. The two produce similar procedural outcomes but arise from different circumstances and carry different implications for subsequent litigation.
Why It Matters in Research
Researchers working with older court records, docket books, and case digests will encounter "discontinued," "stricken from the docket," and "filed away" used interchangeably, often without explanation of which party initiated the termination or what procedural rule governed it. This inconsistency in historical usage makes it difficult to reconstruct what actually happened in a case from the docket notation alone.
The key research trap is assuming finality. A discontinued case in a nineteenth or early twentieth century docket may simply reflect a plaintiff who chose not to proceed — not a court ruling, not a settlement on the record, and not a bar to refiling. If a researcher is tracing litigation history or trying to establish whether a claim was actually adjudicated, "discontinued" alone is insufficient to answer the question.
In state court records particularly, the term's meaning varies across jurisdictions and time periods. Some courts used "discontinued" to mean what modern courts call "voluntarily dismissed without prejudice." Others used it more loosely. Cross-referencing docket entries with any available order or minute book entries is essential.
The Bouvier's citation to a Kentucky case (164 Ky. 426) anchors the equivalence of "discontinued," "stricken from the docket," and "filed away" in early twentieth century Kentucky practice — a useful data point, but not universally applicable.
Historical Dictionary Support
Bouvier's Law Dictionary treats "discontinued" narrowly and practically: it is what happens to an action when it is removed from the docket. The definition is spare, offering the three synonymous phrases and a single case citation. Bouvier's does not address whether discontinuance operates as a bar to future action, does not distinguish between voluntary and involuntary discontinuance, and does not discuss the procedural mechanism by which discontinuance is effected. Researchers should treat the Bouvier's entry as confirming terminology rather than providing a complete procedural framework.
What Bouvier's omits is significant: the classical common law distinction between a discontinuance as a plaintiff's voluntary act and a dismissal as a court's act, the effect on the statute of limitations, and the procedural rules governing when discontinuance is permissible. For that doctrinal content, researchers should consult period procedural treatises and the applicable state practice rules.
Jurisdictional Note
Modern federal practice under the Federal Rules of Civil Procedure uses "voluntary dismissal" (Rule 41) rather than "discontinuance." Many states have adopted similar language. "Discontinued" as a formal term of art is more common in older state court practice and in jurisdictions that retain common law procedural terminology. Its precise legal effect — particularly whether it bars refiling — depends on jurisdiction-specific rules and the circumstances of the discontinuance.