157 Ga. 555 | Ga. | 1924
(After stating the foregoing facts.) We find no error in the judgment of the chancellor. Section 5627 of the Civil Code (1910) is as follows: “Actions may be dismissed at any time. The plaintiff in any action, in any court, may dismiss his action either in vacation or term time, and, if done in term time, the clerk or justice shall enter such dismissal on the docket.” This section, taken from the act of 1843 (Cobb’s Digest, 475) has been of force for more than eighty years, and has appeared in all the Codes which have ever been adopted. As set forth in the act of 1843 itself, the act was designed to remedy an evil which had theretofore existed to the inconvenience of the people and to the encouragement of prolonged litigation. Section 1 of the act is as follows: “Whereas inconvenience and delay frequently occur by reason that parties plaintiff who commenced suits in the superior or inferior and other courts of this State cannot dismiss their actions except at the regular terms of said courts, be it therefore enacted, . . that from and after the passage of this act parties plaintiff who have commenced or may hereafter commence suits in the superior or inferior and other courts of this State, be and they are hereby authorized to dismiss their actions during the vacation of said courts, on the same terms they are now authorized to dismiss actions at the regular terms of said courts. Provided, that such dismissal shall be first entered on the docket by the clerk of the court in which said suit -may be pending,
The law provides, where the defendant sets up any affirmative defense by way of set-off or recoupment, that the plaintiff cannot dismiss his suit so as to affect the rights of the defendant; and it has been held that where a defendant has filed a plea in the nature of a counter-claim, the dismissal of the plaintiff’s petition did not affect the defendant’s right to proceed to recover the amount claimed in his answer. However, these principles do not seem to affect the present case. The plaintiff in error was told by the judge of the superior court that a petition of the same nature as the plaintiff in error was proposing to file had been sanctioned, and that a receiver had been appointed, and suggested to counsel to intervene in that petition. This was on February 23, 1923, and yet the plaintiff in error did not in fact ask an order permitting it to intervene until February 28, 1923. The plaintiff in error could easily have intervened before the plaintiffs, Miller Company and Neuberger & Sons, dismissed their suit; and apparently the only reason they did not do so was that they did not foresee the possibility of a settlement between the debtor and Miller Co. and Neuberger & Sons. Vigilantibus et non dormientibus jura subveniunt.
The point is made that the paper filed with the clerk, to wit:
Judgment affirmed.