164 S.W. 23 | Tex. App. | 1914
Appellant sued appellee for divorce and the custody of their minor child. Trial by jury was waived, and all matters in controversy were submitted to the district judge for his determination. After submission the trial judge announced that the case would be taken under consideration, and his decision announced later. A week subsequent the judge in the forenoon of that day informed the attorneys that immediately after the noon recess he would announce his decision in the case, and at the time indicated to appellant's attorney what his decision would be. About 2 o'clock the court summoned the attorneys for both parties, and announced that his decision was for appellee. About one hour before the judge announced his decision appellant filed with the clerk of the court a written pleading or paper, stating she would not further prosecute her suit, but would take a nonsuit with permission of the court. Such action by appellant was called to the attention of the court for the first time after he had announced his decision. Upon the facts stated appellant asked permission to take the desired nonsuit. The judge declined the request because, in his opinion, it came too late. Appellee in the suit sought no affirmative relief against appellant. The action of the court below in refusing to permit appellant to take a nonsuit is the only error assigned on appeal
While the right conferred upon a plaintiff to a nonsuit is a valuable one for obvious reasons, particularly on occasions developed or arising at trial, and while "the substance and not the shadow" of the right should be preserved (Hoodless v. Winter,
In consonance with the views stated and the facts disclosed by the bill of exceptions, we conclude the court did not err in refusing appellant permission to take a nonsuit, and for that reason the judgment is affirmed.