186 S.E. 494 | N.C. | 1936
Civil action to restrain collection of drainage assessments, to remove cloud from title, and to have Forsyth County Drainage District No. 2 declared null and void.
Answer by defendants denying allegations of complaint, pleading resjudicata, and praying that plaintiffs' action be dismissed.
During the progress of the trial, J. M. Wells, Jr., leading counsel for plaintiffs, was taken ill and was unable to appear in court on the second *403 day; whereupon other counsel for plaintiffs asked that a juror be withdrawn and a mistrial ordered, as they were not able to proceed without the presence and assistance of Mr. Wells. Overruled; exception.
The plaintiffs then announced in open court that they elected to take a voluntary nonsuit. Objection by defendants on the ground that the action is a proceeding in rem. The court declined to permit the plaintiffs to take a nonsuit. Exception.
From verdict and judgment for defendants the plaintiffs appeal, assigning errors.
No rights of the defendants having attached by plea, decretal order, verdict, or otherwise, it would seem the court's refusal to allow the plaintiffs to suffer a voluntary nonsuit is at variance with the practice established by a number of decisions. Oil Co. v. Shore,
The party retiring is not, in a strict sense, said to take a nonsuit, "but is allowed to withdraw or depart with costs against him." Gatewood v.Leak,
The trial court seems to have interpreted the answer as setting up a cross action, but res judicata is usually regarded a plea in bar. 15 R. C. L., 1045, et seq. Indeed, the appropriateness of a cross action in the present proceeding may be doubted. S. v. Lbr. Co.,
The principles announced in R. R. v. R. R.,
The verdict and judgment will be stricken out and the cause remanded for judgment dismissing the action as in case of nonsuit.
Reversed.