McGhee v. Penn & Watson

Per Curiam. An equitable action was brought in the superior court, to enjoin the enforcement of a fi. fa. based on a judgment alleged to have been fraudulently procured in the city court of Floyd county. In his answer the defendant denied all charges 'of fraud, averred that the plaintiffs were indebted to him in a stated amount for wages, and prayed a judgment therefor. An order was passed by the court allowing the plaintiffs to dismiss their suit; and their counsel entered upon the petition a written withdrawal of it. The case made by the cross-petition was entered on the court calendar for trial, and at the same term during which the petition was withdrawn, on motion of the • plaintiffs, the court entered an order adjudging that the voluntary dismissal by the plaintiffs of their petition had the effect of dismissing the entire answer, and struck from the trial calendar the case as made by the answer for affirmative relief. Held: The plaintiffs’ suit was founded upon the alleged fraud of the defendant, and the only relief sought was to enjoin the enforcement of a fi. fa. based upon a judgment obtained by fraud. So far as the record shows, the set-off was wholly unrelated to any matter involved in the plaintiffs’ petition, and was not a proper matter of set-off; and the dismissal of the petition put the whole case out of court. Judgment affirmed. All the Justices concur.