Frierson v. Alexander , 74 Ga. 666 ( 1885 )

Blandford, Justice.

The defendant in error, Mrs. Alexander, brought her action of ejectment against the plaintiff in error to recover certain land. Frierson appeared and filed an equitable plea, which was served on Mrs Alexander. This plea alleged that he was the owner of the land under a certain bond for titles, made by Mrs. Alexander to Mrs. Averill, which bond had been assigned to him; that no forfeiture had occurred under the bond, because Mrs.. Alexander, after said forfeiture had occurred, if any had, stood by and permitted valuable improvements to be made on the land to the value of twenty-five hundred dollars, and had made no complaint. The plea offered payment for the land in terms of the bond, and alleged former tenders, and prayed that it be decreed that no forfeiture had occurred, or, if it had occurred, that the money which had been expended by defendant in the improvements on said land be decreed to be paid to him, in case the plaintiff was allowed to recover said land, and prayed for general relief. To this plea the defendant in error filed a demurrer on several grounds, among others, that there was no equity in the plea of the plaintiff in error. The court overruled this demurrer, and the plaintiff filed her answer to the plea, taking issue on the main allegation in the plea. There was a mistrial of the case, and, in vacation, the defendant in error dismissed her action of ejectment. This was entered on the docket by the clerk. The plaintiff in error, upon these facts, moved the court to re-instate the case, so as to be allowed to try the case made by the equitable plea and the answer thereto. The plaintiff demurred to this application; the court sustained the demurrer and refused the same ; and this judgment, sustaining said demurrer and refusing to re-instates aid case, is excepted to, and the same is assigned as error.

1. The defendant in error insists that there is no sufficient assignment of error in this case, because the error committed by the court is not specially set-out. We think that error is sufficiently assigned. The judgment of the court sustaining the demurrer to the petition of plaintiff in error, and refusing the application, is assigned as error. Whether this judgment was error depends upon the law as applied to the facts alleged in the petition. This is a certain and specific assignment of error; hence the motion to dismiss the writ of error must be overruled. ^*

The court below held that there was equity in the plea filed by the plaintiff in error; why should the case not been re-instated and the parties allowed to proceed to trial on the plea and answer therero ? After the defendant has filed a plea of set-off, the plaintiff can'not dismiss his action without leave of the court, so as to interfere with the plea, and on sufficient cause shown, and on terms prescribed by the court. Code, §2907. A plaintiff may dismiss his bill either in term or vacation, so that he does not thereby • prejudice any rights of defendant. If equitable rights, by set-off or otherwise, have been set up by the answer, the dismissal of the bill shall not interfere with defendant’s right to a hearing and trial on such claims in that proceeding. Code, §4190. These sections of the Code fully confirm the right of the defendant to have had the case re-instated so as to have a hearing and trial on his equitable plea.

Judgment reversed.