96 Ga. 40 | Ga. | 1895
Jackson sued Roane for an accounting of the partnership aflairs of the firm of Roane & Jackson. The defendant’s attorneys had an entry of “answered” made upon the docket at the appearance term, but further
We think the court erred in so holding. Section 8447 of the code declares that “the plaintiff in any action, in any court, may dismiss his action either in vacation or in term time; and if done in term time, the clerk or justice shall enter such dismissal on the docket.” Section 4190 declares that “ a complainant may dismiss his bill at any time, either in term or vacation, so that he does not thereby prejudice any right of the defendant. If equitable claims by way of set-off or otherwise have been set up by the answer, the dismissal of the bill shall not interfere with defendant’s rights to a hearing and trial on such claims in that proceeding.” The section last cited has been construed to mean that the rights of the defendant which the complainant cannot prejudice by dismissing the bill, are mainly those specified in the last clause of the section, to wit: equitable claims by way of set-off or othei’wise, which the defendant has set up in his answer. (Evans v. Sheldon, 69 Ga. 110, and cases cited.) In Kean v. Lathrop, 58 Ga. 355, and Harris v. Hines, 59 Ga. 427, it was held that if the answer was merely defensive, and there was no set-off or other prayer for equitable relief in the nature of a cross-bill, the complainant had a right to dismiss the bill. In the present case, as we have seen, there was no further plea than the entry of “answered,” the equivalent of the general issue. There being no plea or answer claiming