Gurr v. Brinson

Atkinson, J. (After stating the facts.) A petitioner may dismiss his petition at any time, either in term or vacation, so that he does not thereby prejudice any right of the defendant. If claims by way of set-off or otherwise have been set up by the answer, the dismissal of the petition shall not interfere with the defendant’s right to a hearing and trial on such claims in that proceeding. Civil Code, § 5548. The petition, among other things, [667] sought an accounting between the plaintiff and the defendant as partners. The plea was not as full as it might have been in regard to such amount as might be due the defendant on-an accounting, and might have been open to special demurrer made in due time; but it did set up in substance that the defendant was entitled to $65 from the partnership. In view of the prayer in the petition for an accounting, this cross-demand contained in the defendant’s answer was not so defective as to be a proper subject for dismissal on general demurrer or on any of the grounds contained in the motion. Accordingly, the judge did not err in refusing to strike this part of the answer, or in refusing to dismiss the entire 'case on motion of the plaintiff. Judgment affirmed. All the Justices concur.