Clemmons v. Life Insurance Co. of Georgia

6 N.C. App. 708 | N.C. Ct. App. | 1969

PARKER, J.

It is a generally recognized principle of English-American law that a plaintiff is not bound to prosecute his action to a finish merely because he has begun it, but may, up to some point in the litigation, abandon his action without losing his right to come back on another day. The sole question presented by this appeal is whether plaintiff’s voluntary nonsuit in this case was taken in apt time to entitle him to judgment of nonsuit as a matter of right.

While under the practice in a number of jurisdictions a plaintiff may no longer take a voluntary nonsuit after the jury has retired to consider their verdict, 27 C.J.S., Dismissal and Nonsuit, § 20, p. 344, North Carolina has continued up until the present time to follow the common-law rule which permitted the plaintiff to take a nonsuit at any time before the verdict. “When the defendant has asserted no counterclaim and demanded no affirmative relief, the plaintiff may take a voluntary nonsuit as a matter of right at any time before the verdict.” Mitchell v. Jones, 272 N.C. 499, 158 S.E. 2d 706. We note that this rule of practice has been changed by the adoption of our new Rules of Civil Procedure. Rule 41(a) (1) (i), as rewritten by Chap. 895 of the 1969 Session Laws, provides that an action or any claim therein may be dismissed by the plaintiff without an order of court “by filing a notice of dismissal at any time before the plaintiff rests his case.” (Emphasis added.) The new rules, however, will not become effective until 1 January 1970, and disposition of the present appeal must be controlled by the existing practice in this State.

“The rule is uniformly observed in this State that a plaintiff, in an ordinary civil action, against whom no counterclaim is asserted and no affirmative relief is demanded, may as a matter of right, take a voluntary nonsuit and get out of court at any time before verdict, and his action in so doing is not reviewable, and it is error for the court to refuse to permit him to take the voluntary nonsuit.” Insurance Co. v. Walton, 256 N.C. 345, 123 S.E. 2d 780. In that case the jury had returned to the courtroom to render its verdict, and while the deputy sheriff was on the way to the judge’s 'bench to deliver the issues to the judge, plaintiff’s attorney arose and moved to be permitted to take a voluntary nonsuit. The trial judge at first refused the motion and took the verdict, which was rendered against the plaintiff. Subsequently the trial court allowed the motion of plaintiff for voluntary nonsuit, and on appeal the Supreme Court affirmed, holding that the plaintiff had acted in apt time to withdraw his suit and had a right to do so. In arriving at this decision, the opinion of the Supreme Court written by Moore, J., cited G.S. 1-224 which provides: “In actions where a verdict passes against the plaintiff, judgment shall be entered against him.” (Emphasis added.) The opinion also laid stress upon the language which had been employed by Chief Justice Pearson in the early case of Graham v. Tate, 77 N.C. 120, quoting from the decision in that case as follows: “A plaintiff can at any time before verdict withdraw his suit, or, as it is termed, ‘take a nonsuit’. . . . (A) ccording to the course of the court, the plaintiff is at liberty to take a nonsuit by announcing his purpose to absent himself even after the judge has charged the jury and their verdict is made up; provided he does so before the verdict is made knoion.” (Emphasis theirs.)

In discussing the North Carolina practice as affected by G.S. 1-224 and by the decision in Graham v. Tate, supra, Justice Moore in Insurance Co. v. Walton, supra, said:

“We conclude that a verdict ‘passes,’ when it has been accepted by the trial judge for record. And á plaintiff may take a voluntary nonsuit at any time before the verdict is accepted and before it is ‘made known.’ A verdict is accepted by the judge when he has inspected it and finds, or should as a matter of law find, that it is determinative of the issues involved. A verdict is ‘made known’ when its contents have been seen or heard by any person or persons other than the jury serving on the case, the trial judge, and a court official or court officials acting in the presence of the judge and under his direction with respect to the verdict.”

In the case before us, plaintiff’s motion for nonsuit was made after the jury’s verdict had been delivered to and inspected by the trial judge and after he had found that it was determinative of the ■issues involved in this case. However, the verdict had not yet been “made known,” in the sense defined in the Walton case. We note that the language employed by the Supreme Court in laying down the timeliness rule in Walton was expressly that “a plaintiff may take a voluntary nonsuit at any time before the verdict is accepted and before it is ‘made known.’ ” (Emphasis added.) The court did not say that a plaintiff may take a voluntary nonsuit at any time before the verdict is either accepted or made known. Under the language employed by the Supreme Court, plaintiff’s right to take a voluntary nonsuit did not expire until both events had occurred. Therefore, plaintiff’s motion for voluntary nonsuit in the present case was made in apt time and the decision of the superior court so holding is

Affirmed.

Campbell and GRAHAM, JJ., concur.