45 So. 418 | Ala. | 1908
The general rule is, where the plaintiff has instituted a civil action, he has the right to dismiss or discontinue at his own cost at any time before verdict. This practice'has been adopted, even in those cases where the defendant has pleaded a set-off and in
It is insisted by counsel for the appellant that the rule above declared is merely applicable to the common law, which does not authorize judgment over for the defendant when the cross-demand exceeds the plaintiff’s claim; that our statutes authorize a judgment over for the defendant, upon pleas of set-off and recoupment; and that what was said in the case of Griel v. Loftin, supra, was dictum. We concede that.what was said in that case, on this subject, was dictum,-|as this question was not there involved; but the expression of the writer seems to be fortified by the Aveight of authority, and what was there said is applicable in jurisdictions where judgment over is provided, as Avell as under the common law. — Anderson v. Gregory, 43 Conn. 61; Merchants’ Bank of Canada v. Schulenberg, 54 Mich. 49, 19 N. W. 741. This Michigan case Avas by a divided court, and resulted in an affirmance of the doctrine that the plaintiff can dismiss his suit at any time before verdict, although the defendant claimed a judgment over, and Avas authorized, under the statute, to recover for said excess. The opinion Avhich controlled in this case Avas rendered by Cooley, C. J., and as it deals Avith several authorities on the subject, including the case relied upon by appellant’s counsel, of Riley v. Carter, 3 Humph. (Tenn.) 230, Ave quote at length: “In this case the defendant relied upon a set-off, which, he claimed, Avas larger than the plaintiff’s demand, and he brings the case to this court, assigning for error the order of the circuit court permitting the plaintiff, notwithstanding his objection, to submit to a non-suit. The general right of the plaintiff to discontinue
Whether the plaintiff was entitled to a bill of exceptions, under section 614 of the Code of 1896, or not, because his claim was admitted by the defendant and there was no adverse ruling in reference to same, we need not decide, as it is clear he had the right to nonsuit or dismiss at any time before the verdict. The trial court erred in not permitting the plaintiff to dismiss his case, and properly corrected the error by granting the motion for a new trial.
The judgment of the city court is affirmed.