Harry L. Winter Inc. v. Peoples Bank

Beck, P. J. (After stating the foregoing facts.) In the brief of counsel for defendant in error it is contended that there are no defendants in error named specifically in the bill of exceptions, and that it is only by inference that it can be determined who are intended to be defendants in error; and further, that there is no sufficient assignment of error as to the rulings of the court; nor is it alleged that any of the rulings are contrary to law. Counsel for defendant in error do not argue these contentions, but “merely call the court’s attention to the record as contained in the bill of exceptions.” While there is no formal motion to dismiss, we consider these criticisms of the bill of exceptions, because jurisdictional questions are raised; and if — 389 — it be true that there are no sufficient assignments of error, and it can not be determined who are the defendants in error, then the bill of exceptions should be dismissed. We find this recital in the bill of exceptions: “To the ruling of the court and the judgment of the court directing a verdict in favor of the Peoples Bank of Calhoun, .Georgia, as aforesaid, the plaintiff then and there excepted and now excepts, and assigns the same as error.” While the Peoples Bank is not expressly named as the defendant in error, we think that the recital which we have quoted, taken in connection with the other recitals in the bill of exceptions, clearly shows that the Peoples Bank is intended as the defendant in error. And that being true, the bill of exceptions should not be dismissed upon the ground that the defendant in error is not sufficiently indicated. And that bank is the only necessary party defendant. While the suit is against the bank and Mrs. Alexander as administratrix of the estate of C. M. Alexander, deceased, she has no interest in sustaining the judgment. Her case is the same whether the plaintiff or the Peoples Bank prevails in the suit. The ruling made in the second headnote makes elaboration here unnecessary. Among the specific assignments of error made by the plaintiff upon the direction of a verdict is one based upon the contention that the court could not proceed with the trial of the case after the plaintiff had dismissed its action, and erred in holding to the contrary and directing the verdict. When the case was called, counsel for the plaintiff announced in open court, before the case proceeded to trial, that the plaintiff desired to dismiss its action, and had entered on the original petition its dismissal thereof in the following words, to wit: “Now comes the plaintiff in the above-stated case and dismisses the action;” this being signed by the plaintiffs attorneys. Upon objection by counsel for the defendant, the court ruled that the defendant in its answer “asked for affirmative relief, and that the plaintiff could not dismiss its cause of action over the objection of this defendant.” The plaintiff in error excepts to this ruling and assigns the same as error, insisting that it had a legal right to dismiss the action, and that the ruling of the court was error. We are of the opinion that this contention of counsel for plaintiff in error is well founded. The answer of the defendant is wanting in any allegation of collateral — 390 — facts or circumstances other than those alleged in the petition, as a basis for a cross-action or as permanent relief to be granted to the defendant. In the 8th paragraph of its answer to the 8th paragraph of the first count in the petition is the following: “Defendant admits that it obtained judgment upon its note and set up its lien upon the premises described in plaintiff’s petition, as alleged, and insists that its lien is a first lien upon the property referred to in the plaintiff’s petition.” And the 8th paragraph of the answer to the 8th paragraph of the second count of the petition contains an admission and assertion substantially similar to that last quoted above from the answer to the 8th paragraph of the first count of the petition. The answer concludes with the following prayer: “Wherefore defendant prays that the grounds of relief prayed for in said second count be denied on each and every ground, and that the said lien held by this defendant be decreed to be a first lien upon the described premises.” We do not think that this prayer, in view of the nature of the answer, which categorically admits or denies the paragraphs of the petition, sets up any right in the bank to affirmative relief against the plaintiff. The plaintiff declared that it had, or should have in equity, the prior lien as shown by the documents set forth or referred to in the pleadings. The bank’s claim to have its lien given priority is defensive as against the equities relied on by the plaintiff. It is true that the defendant bank in the answer to the 8th paragraph of both counts of plaintiff’s petition asserted that its lien was a first lien against the land described in the petition, and that its lien was superior to the lien claimed by the plaintiff against said land. But these assertions of a prior lien were in direct answer to claims by the plaintiff in its petition that it, the plaintiff, was entitled to the priority of its lien against the land for the reasons set out in the petition. And we agree further with the contention of counsel for plaintiff in error, that in asserting that the bank held the first lien against the land, or that it was entitled to superiority over the lien of the plaintiff, the bank merely denies the claims of the plaintiff that its lien was superior to that of the bank. The bank did not allege any additional or collateral facts, nor did it pray for affirmative relief against the plaintiff in the sense in which the expression “affirmative relief” is used in decisions where it is held that while a complainant may ordinarily — 391 — dismiss bis petition, he can not prejudice the rights of the defendant by carrying with it so much of the answer “as is in the nature of a cross-bill praying for affirmative relief against complainant ;” —a ruling that has been made in many, decisions. In the Civil Code, § 5548, it is declared that: “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.” Among the cases relied upon by counsel for defendant in error is that of Evans v. Sheldon, 69 Ga. 100, where it was said: “As a general rule a complainant has the right to dismiss his bill at any stage of the case, provided he does not thereby prejudice the rights of the defendant; and a dismissal of the bill carries with it the entire case, including the answer. But where the defendant has set up in his answer equitable claims by way of set-off or otherwise, the dismissal of the bill does not interfere with the defendant’s right to a hearing or trial of such claims. The complainant may still dismiss his bill, but he can not prejudice the rights of defendant by carrying with the bill so much of the answer as is in the nature of a cross-bill praying for affirmative relief against complainant.” But, as we have pointed out above, there is nothing in the answer of the defendant which renders it an answer in the nature of a cross-petition. “A distinction should be drawn between cross-bills which seek affirmative relief as to other matters than those brought in suit by the bill, yet properly connected therewith, and cross-bills which are filed simply as a means of defense; since there are rules .applicable to the one class which do not apply to the other. Thus, a dismissal of the original bill carries the cross-bill with it when the latter seeks relief by way of defense; but it is otherwise, and relief may still be given upon the cross-bill, where affirmative relief is sought thereby as to collateral matters properly presented in connection with the matters alleged in the bill.” Story’s Equity Pleading, § 399, quoted in Lacher v. Manley, 139 Ga. 802 (78 S. E. 188), where it was further said: “And where the cross-bill sets up additional facts germane to the subject-matter of the original bill and prays for affirmative relief against the complain — 392 — ants in the original bill on the case thus made, the dismissal of the original bill does not dispose of the cross-bill, but it will be retained for disposition on its merits as an original bill.” In discussing that part of section 5548 which provides that “a petitioner may dismiss his petition at any time, . . so that he does not thereby prejudice any right of the defendant,” this court said, in Evans v. Sheldon, supra: “We think it quite clear that this section means, construing it altogether, the rights of defendant which the complainant can not prejudice by his dismissal of the bill are mainly those rights which are specified in the last clause of the section, to wit: equitable claims by way of set-off or otherwise, which the defendant has set up in his answer, and so the section has been construed.” In Kean v. Lathrop, 58 Ga. 355, it was said: “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.” “A dismissal of a bill in equity carries the whole case out of court, including the answer of the defendant thereto, if said answer contain no set-off or other prayer for relief in the nature of a cross-bill.” Harris v. Hines, 59 Ga. 427. “Where a defendant has only pleaded matter which goes to defeat the plaintiff’s cause of action, and'does not ask for the recovery of money or relief against the plaintiff, and the plaintiff fails to appear and prosecute his case, it is error to allow the defendant to prove his defense and to take a verdict in his favor, and thus procure an adjudication that the plaintiff should not recover.” Woodall v. Exposition Cotton Mills, 31 Ga. App. 269 (2) (120 S. E. 423). “Where a plaintiff fails to appear and prosecute his ease, it is of course the right of the defendant to move to have the same dismissed, for want of prosecution; and this is the only proper course to be pursued, unless there has been filed a plea of set-off, or some other defense in the nature of a cross-action against the plaintiff. In that event, it might be the right of the defendant to proceed to prove his counter-claim and take judgment thereon; but even then the merits of the plaintiff’s cause of action would not be affected by the rendition of a judgment in the defendant’s favor upon his counter-claim.” Bateman v. Smith Gin Co., 98 Ga. 219, 220 (25 S. E. 422). The rule as laid down — 393 — in Corpus Juris is as follows: “The plaintiff may dismiss any claim where such dismissal will not prejudicially affect the interests of defendant, but he will not be permitted to dismiss, to discontinue, or' to take a nonsuit, when by so doing defendant’s rights will be prejudiced, or he will be deprived of any just defense. Nevertheless, the injury which will thus be occasioned to defendant must be of such a character that it deprives him of some substantive rights concerning his defenses not available in a second suit or that may be endangered by the dismissal, and not the mere ordinary inconveniences of double litigation which in the eye of the law would be compensated by costs.” 18 C. J. 1158, 1159, § 31. Many other decisions to the same effect could be cited; and in view of all these we are of the opinion that the court erred in refusing to give effect to the entry of dismissal of the case made by plaintiff’s counsel on the petition. ' Having erroneously held that the plaintiff could not dismiss his case, what took place subsequently in the trial was nugatory, and it is unnecessary to discuss the other assignments of error in the bill of exceptions. Judgment reversed. All the Justices concur.