Gatewood v. . Leak

MekrimoN, J. The appellant contended first, that the Court had no authority to hear and determine the motion for nonsuit out of term time. And certainly it could not. •do so unless by consent of parties, but it is well settled that *365 with such consent it could. Bynum v. Powe, 97 N. C., 374, and the cases there cited. We think it sufficiently appears from the record that the appellant gave such consent. The motions for an injunction and nonsuit were argued in term, and the Court, just at the end of the term, signified its purpose to take time to consider them, as was common practice, and the appellant then made no objection. Afterwards, at Chambers, and out of term, it seems from the recital in the judgment, the motions were again argued, and by counsel for the appellant without objection. At all events, it does not appear that objection was made on the account mentioned until -it was made in this Court. The fair inference, therefore is, that the appellant consented that the Court might determine the motion out of term. If he did not intend to do so, he should have so said to the Court in apt time. His very intelligent counsel knew the course of practice in such matters, and, no doubt, would have made objection if there had been any purpose or desire to do so. Moreover, it is not probable that the learned Judge would have heard the. motion without proper consent. By implication, at least, consent was given, and it was too late after judgment to raise such objection. Coates v. Wilkes, 94 N. C., 174; Anthony v. Estes, decided at the present term. The cause of action alleged in the complaint is wholly equitable in its nature, and there is no reason why, in such a case, one of several parties plaintiff in a proper case shall not abandon, or ask the Court to dismiss the action as to himself, and thus pass entirely out of it, and substantially and in effect, under the prevailing method of civil procedure become nonsuit, unless some other party to the action shall have acquired some right or advantage, or a defendant shall have pleaded a counter-claim affecting adversely the party seeking to retire, that the party or defendant objecting is entitled to have settled and determined in the action. The *366 party thus retiring from the action in such a case does not strictly take a nonsuit, but the Court, at his instance, allows him to abandon, depart, or withdraw from it, giving judgment against him for proper costs. Lafoon v. Shearin, 95 N. C., 391; Bynum v. Powe, supra. At the time the appellee, “ Samuel Gatewood, moved for a nonsuit,” the defendants had simply filed their answers, and no one of them pleaded a counter-claim. No order or judgment, interlocutor}'- or otherwise, had been entered. As to the appellees they insisted that a tract of land mentioned in the complaint and claimed by him, and for which he had a deed of conveyance from his co-plaintiff, Gatewood, was subject to be sold to satisfy their debts, or some of them, but they acquired no right as against him by virtue of any thing done in the action. As no counter-claim had been pleaded affecting the appellants, and no decree or decretal order had been made whereby the appellees, or one or more of them, had acquired rights in the action as against him, he was at liberty to dismiss or abandon the action, as the Court allowed him to do. See the cases above cited. Watt v. Crawford, 11 Paige, 470; Dar. Ch. Pr., 930. There is no error. No error.