Daniel v. Etheredge , 194 Ga. 860 ( 1942 )

Where the answer "by way of cross-bill" to a petition contained no plea of set-off or prayer for affirmative relief, it was error to sustain an objection to the plaintiff's dismissal of her action. The subsequent trial was nugatory.

No. 14154. NOVEMBER 12, 1942. Mrs. Eloise Baker Daniel instituted an equitable action against J. Lee Etheredge Jr., and four other persons. Three amendments to the petition were allowed, after which a demurrer interposed by defendants was overruled. A trial resulted in a verdict for defendants. Judgment overruling a motion for a new trial was reversed. Daniel v. Etheredge, 191 Ga. 793 (13 S.E.2d 763). After the remittitur from the Supreme Court was made the judgment of the trial court, the case was again placed on docket for trial. Before the trial term the plaintiff, on October 2, 1941, entered an order of dismissal on the docket and on her petition. When the court convened, counsel for the plaintiff announced the dismissal in open court; whereupon the judge sustained an objection by J. Lee Etheredge Jr., to the dismissal of the suit, claiming that he had filed a cross-answer praying for relief against the plaintiff, and that such should be tried. The plaintiff excepted pendente lite to the judgment refusing to allow dismissal of the petition, alleging that the plaintiff objected to this judgment, and moved "to dismiss the alleged cross-bill, the same being paragraph 19 of the answer, because J. Lee Etheridge Jr. was not sued as attorney in fact of the plaintiff, in that the property he received of her individually was not involved in the suit; that nothing was prayed against him, nor an accounting asked against him as attorney in fact; and that his cross-bill was not germane to this petition, and did not aver into what facts the court should inquire, so as to give him the acquittance prayed for."

The material portion of paragraph 19 of defendants' answer was: "For further answer to the allegations of paragraph nineteen, and by way of cross-bill, these defendants pray that this Honorable Court inquire into the acts and doings of said J. Lee Etheredge Jr., under the power of attorney from Mrs. Eloise Baker Daniel, and make a legal finding that said J. Lee Etheredge Jr. has measured up to his trust, and provide for a full and complete acquittance of said trust upon the turning over of Mrs. Daniel's property to said Mrs. Daniel or such person as may be designated by her."

After the judge refused to recognize the dismissal of the entire case against all the defendants, the plaintiff, without waiving her rights of dismissal, presented her answer to the cross-bill. On the second trial of the case, after the introduction of evidence, the court directed a verdict in favor of the defendants. The exception is to a judgment overruling the plaintiff's motion for a new trial. Error is assigned also on the plaintiff's exceptions pendente lite. 1. "The plaintiff in any action, in any court, may dismiss his action either in vacation or term time, if he shall not thereby prejudice any right of the defendant, and if done in term time, the clerk of court or justice of the peace shall enter such dismissal on the docket. After a plea of set-off or otherwise shall have been filed, the plaintiff may not dismiss his action so as to interfere with said plea, unless by leave of the court on sufficient cause shown, and on terms prescribed by the court." Code, § 3-510.

2. The material portion of the answer in the instant case was; "By way of cross-bill, these defendants pray that this Honorable Court inquire into the acts and doings of said J. Lee Etheredge Jr., under the power of attorney from Mrs. Eloise Baker Daniel, and make a legal finding that said J. Lee Etheredge Jr., has measured up to his trust, and provide for a full and complete acquittance of said trust upon the turning over of Mrs. Daniel's property to said Mrs. Daniel or such person as may be designated by her." Inasmuch as the answer contains no plea of set-off, or prayer for affirmative relief, the entry of dismissal by the plaintiff's counsel should have been given effect; and the court erred in sustaining the defendants' objection to the dismissal of the suit, as complained of in the exceptions pendente lite filed by the plaintiff. Harry L. Winter Inc. v. Peoples Bank ofCalhoun, 166 Ga. 385 (3) (143 S.E. 387); 27 C. J. S. 183, § 27; 2 Words and Phrases, 671, and cit. The court having erroneously held that the plaintiff could not dismiss her case, what took place subsequently in the trial was nugatory, and it is unnecessary to discuss other assignments of error in the motion for a new trial.

Judgment reversed. All the Justices concur.