Kean v. Lathrop

Bleckley, Judge. 1. “The plaintiff in any action, in any court, may dismiss his action either in vacation or term time, and, if done in term time, the clerk or justice shall enter such dismissal on ■the docket.” Code, §3447. “A complainant may dismiss his bill at any time, either in term or vacation, so that he does not thereby prejudice any right of the defendant. If equitable claims, by way of set-off or otherwise, have been set up by the answer, the dismissal of - the bill shall not interfere with the defendant’s right to a hearing and trial on such claims in that proceeding.” Code, §4190. Under these sections of the Code, whoever has a case in any court, may dismiss it before trial without any leave or order, and without notice to the opposite party; and if done in term time, it makes no difference that the judge presiding is disqualified to try it. "When dismissal is solely the act of the party, and may take place as well in vacation as in term, the constitution of the court, at the time the party does the [357] act, is immaterial. As there is no occasion for judicial action, it matters not that the judge on the bench has once been of counsel in the cause. 2. 3. In dismissing a bill, however, the complainant is to prejudice no right of the defendant. If the defendant has answered, making discovery called for, or discovery not waived, but confining his answer to defensive matters, and praying for no relief against the complainant, he does not-thereby acquire the right to retain the complainant’s case,in court, and have it tried. His only right in that case, resulting from the filing of a defensive answer, is to usé his answer as evidence, so far as it is responsive to the bill, in the event a trial shall take place. But no trial can take place after the complainant has dismissed his bill.’ By dismissing his bill, the complainant withdraws from the court, and is no longer a suitor for relief. There is nothing left to defend, and the answer being wholly defensive, its mission is accomplished. It is true, that after obtaining discovery, the complainant could not shun the force of the answer as evidence by subsequent waiver, leaving the bill in court, and introducing the waiver by amendment- — 50 Ga., 53. But it is not a consequence of this rule of law that the bill cannot be dismissed — see 4 Paige, 227. The dismissal of the bill does not harm the defendant. "Were no second bill ever brought for the same cause, he would be benefitted. His real grievance is, not that the first was dismissed, but that the second was brought; and even that would not materially change his situation if the second did not waive discovery. Possibly, after obtaining discovery by the first bill, the complainant may be precluded from waiving it effectually in the second. It may be that the defendant can answer just as he responded to the former bill, and make good his right to use the answer by connecting it with the fact of the former discovery. To rule that question now would be premature, as it is not made in the record, and has undergone no adjudication in the court below. If no second bill had been filed, the first would undoubtedly have [358] been out of court, and would have remained out, the complainant having dismissed it in term time, before the second was filed, and having caused the dismissal to be entered both on the docket and the minutes of the court. The filing of a second bill did not reinstate the first; and, therefore, the court erred in ruling that the first was still pending, in sustaining the defendant’s plea to that effect, and in dismissing the second bill upon that plea. Judgment reversed. "Warner, Chief Justice, concurred, but furnished no written opinion.