Yellowday v. . Perkinson

AlleN, J. The right of the plaintiff to submit to a judgment of non-suit is accurately stated, as applied to different conditions of the pleadings, in McNeill v. Lawton, 97 N. C., 20, where the Court says: “Generally, a plaintiff may abandon his action and voluntarily submit to a judgment of nonsuit, at any time after bringing his action, and before the verdict of a jury, or what is tantamount to it. Bank v. Stewart, 93 N. C., 402, and the cases there cited. He cannot do so, however, under the present method of civil procedure, if the defendant has pleaded a counterclaim — a cause of action arising out of the contract or transaction set forth in the complaint .as the grounds of the plaintiff’s cause of action. In such case it is reasonable and just that the rights of the parties arising out of such contract or transaction shall be settled at the same time and in the same action, and that one party shall not be allowed to abandon the action without the consent of' the other, until this shall be done. The plaintiff cannot' justly complain if he is detained in court until the whole merits of his cause of action are tried and the rights of the defendant growing out of the same are settled, if the latter shall so desire. Whedbee v. Leggett, 92 N. C., 469. It is otherwise when the counterclaim is a cause of action arising independently of that alleged in the complaint, such as that allowed by the statute (The Code,’ sec. 244, par. 2). In that case the plaintiff may submit to a voluntary non-suit as to his own cause of action; but he cannot, by doing so, put an end to the defendant’s right to litigate his counterclaim. The action continues for that purpose, unless the defendant shall see fit to withdraw his counterclaim and thus abandon the action with which he has become identified, as seeking redress from the plaintiff, who becomes practically a defendant, while the defendant becomes a plaintiff in the action thus prolonged. Whedbee v. Leggett, supra.” *147 Tbe eases .in support of these principles are collected in the annotations to section 1520 of Pell’s Eevisal. If, therefore, the defendants have pleaded a counterclaim in the answer, his Honor was correct in refusing to dismiss the action. In Cheese Co. v. Pipkin, 155 N. C., 397, the Court fully approved the definition and description of a counterclaim stated by Justice Hoke in Smith v. French, 141 N. C., 6, as follows: “Our statute on counterclaim is very broad in its scope and terms, is designed to enable parties litigant to settle well-nigh any and every phase of a given controversy in one and the same action, and should be liberally construed by the court in furtherance of this most desirable and beneficial purpose. Subject to the limitations expressed in this statute, a counterclaim includes well-nigh every kind of cross-demand existing in favor of defendant against the plaintiff in the same right, whether said demand he of a legal or an equitable nature. It is said to be broader in meaning than set-off, re-coupment, or cross-action, and includes them all, and secures to defendant the full relief which a separate action at law, or a bill in chancery, or a cross-bill would have secured to him on the same state of facts.” These authorities establish the proposition that the plaintiff has no right to submit to a judgment of nonsuit without the consent of the defendant, and dismiss the action, if a counterclaim is pleaded, and that when facts are alleged which would entitle the defendant to maintain a separate action against the plaintiff, legal or equitable, they amount to a counterclaim. Applying these principles to the pleadings, we are of opinion a counterclaim is alleged. The defendants claim that they are the owners and in possession of the land, and the plaintiff is insolvent, and upon the facts alleged the defendants are entitled to injunctive relief, not as auxiliary- to some other cause of action, but as a cause of action, it being the only relief available. As was said in Marshall v. Comrs., 89 N. C., 106: “The injunctive relief sought in this action is not merely auxiliary to the principal relief demanded, but it is the relief,” and this was approved in Hyatt v. DeHart, 140 N. C., 271. Other citations of authorities where actions have been sustained when the only relief sought was by injunction will be found in Pell’s Eevisal, sec. 819. The objection to the remark of his Honor cannot be considered, because no exception was taken, and the case on appeal states that it was not made in the hearing of the jury. It also appears upon the facts, not seriously controverted, that the plaintiff has no title to the land in controversy, and the remark could not have injured him. No error.