Sink v. . Hire

Stacy, C. J. 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, 171 N. C., 51, 87 S. E., 938; Olmsted v. Smith, 133 N. C., 584, 45 S. E., 953; Pass v. Pass, 109 N. C., 484, 13 S. E., 908; Bynum v. Powe, 97 N. C., 374, 2 S. E., 170; Graham v. Tate, 77 N. C., 120. In the absence of some right attaching which the defendant is entitled to have determined in the action, it is generally understood that “the plaintiff can take a nonsuit, as a matter of right, at any time before verdict.” Mfg. Co. v. Buxton, 105 N. C., 74, 11 S. E., 264; Campbell v. Power Co., 166 N. C., 488, 82 S. E., 842; Cahoon v. Brinkley, 168 N. C., 257, 84 S. E., 263; Carpenter v. Hanes, 167 N. C., 551, 83 S. E., 577; Caldwell v. Caldwell, 189 N. C., 805, 128 S. E., 329; Bank v. Stewart, 93 N. C., 402. 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, 99 N. C., 363, 6 S. E., 706; Lafoon v. Shearin, 95 N. C., 391. “As the plaintiff possessed the power of becoming nonsuit when called before verdict, it became a general practice to allow him to do so at any time before verdict, when he desired from any cause to abandon his action. So long as he is merely a plaintiff, the court has no means by which he can be compelled to appear and prosecute his suit against his will, and no injury can result from allowing him to abandon it” — Rod man, J., in McKesson v. Mendenhall, 64 N. C., 502. The following cases are also in point and to the same effect: In re Baker, 187 N. C., 257, 121 S. E., 455; Dawson v. Thigpen, 137 N. C., 462, 49 S. E., 959; Rumbough v. Young, 119 N. C., 567, 26 S. E., 143. *404 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., 199 N. C., 199, 154 S. E., 72. The principles announced in R. R. v. R. R., 148 N. C., 59, 61 S. E., 683; Waddell v. Aycock, 195 N. C., 268, 142 S. E., 10, and others of similar import, cited and relied upon by defendants, are not applicable to tbe present record. Killian v. Chair Co., 202 N. C., 23, 161 S. E., 546. The verdict and judgment will be stricken out and the cause remanded for judgment dismissing the action as in ease of nonsuit. Reversed.