8 Ga. App. 51 | Ga. Ct. App. | 1910
The E. E. Forbes Piano Company brought a suit against Hixon in the city court of Polk county for $528.46. To this petition the defendant filed a plea of set-off, admitting the plaintiffs claim, but exhibiting a larger Counter-claim in his own favor, and asking a judgment against the plaintiff for the excess, amounting to $118.61. Attached to the plea was a statement in which there purported to be very minutely detailed every transaction between the plaintiff and the defendant during the period in which the defendant was employed by the plaintiff. The defendant’s answer was filed June 19, 1909, and on December 11, 1909, the general manager of the plaintiff company undertook to have the suit dismissed, without the consent of the company’s
It appears that the plaintiff not only did not have the consent of the defendant, which was essential, in order to enable it to dismiss the suit, but that it paid the costs and attempted to withdraw the action, without regard to the plea of set-off, without leave of the court, and over the protest of the attorneys who had filed the suit. Under the provisions of the Civil Code, § 3754, after a plea of set-off is filed, a plaintiff can not dismiss his action so as to affect the plea of set-off, unless by leave of the court, on sufficient cause shown, and on the terms prescribed by the court. While, therefore, the plaintiff had the right to dismiss the suit, or at least to abandon the hope of a recovery against the defendant, it could not prevent the defendant’s recovering against it, unless the defendant failed to prove his claim or the plaintiff disproved it to the satisfaction of the jury. The court therefore did not err in proceeding with the trial, even after the attempt of the plaintiff to dismiss the action.
The court went to' the trouble of having the plaintiff notified that the case had been set down for trial upon the calendar fixed for the January term. It was not required that this should be done. The counsel who filed the plaintiff’s petition also notified its general manager that the case had been set for trial. . And yet there was no appearance on the part of the plaintiff company, either by its general manager or any other representative of the company, or by either of its counsel. The contention is made that the court erred in refusing a new trial, because the case should have been continued on account of the absence of one of the attorneys. We do not think the court erred in not continuing the case. The court was not required to continue it on his own motion without any showing whatever. We do not say that there are not instances in
Judgment affirmed.