| Ark. | Mar 18, 1905
(after stating the facts.) The first question presented by this appeal is whether the circuit court erred in overruling the motion of the plaintiff to be permitted to take a nonsuit; said notice being made before the case was called for trial. We regret that counsel for appellee have filed no brief, for we have some doubts as to whether the record correctly shows the grounds of the court’s ruling on this motion. The plaintiff, under our practice, has the right to control his own action, and may dismiss it without prejudice to a future action at any time before the final submission of the case to the jury. But if the defendant has filed a counterclaim, in which affirmative relief is asked against the plaintiff which entitles her to a judgment against the plaintiff, if the facts alleged in the counterclaim are true, then the plaintiff cannot affect the right of the defendant, to a trial of her counterclaim by a dismissal of her complaint. Now, in this case the defendant does ask that her answer be taken as a cross-complaint, and that she recover the possession of the land from plaintiff and $100 damages, though she does not allege that plaintiff was in possession of the land. ■ It is possible that the plaintiff may have got possession of the premises after the commencement of the action, and that may be the reason why she wished to take nonsuit. But before she asked for the dismissal the defendant had filed her answer and counterclaim asking for the recovery of the land. While, as before stated, it does not allege that plaintiff was in possession of the premises, yet, as there was no demurrer, we think it sufficient to sustain the action and judgment of the court, if there was any evidence to show that plaintiff was in possession of the land. If the defendant, and not the plaintiff, is in possession of the land, the defendant by her cross-complaint would be áimply trying to obtain at- law a judgment quieting her title to the land, and this she cannot do. As there is no evidence to show possession on the part of the plaintiff, the judgment will be reversed, and the cause remanded, with an order' that if defendant desires to amend her counterclaim, so as to show that the plaintiff is in possession of the land, she be permitted to do so, and to have a new trial on the issues presented; but if she declines to make the amendment, the court will permit the plaintiff to dismiss her action without prejudice, and that defendant pay the costs of this appeal.