Benton v. Abston

Nichols, Presiding Judge. Joseph F. Abston sued Preston Benton in the Superior Court of C'atoosa County for damages allegedly resulting from injuries sustained while riding in an automobile owned by the defendant Preston Benton, and driven by his minor son, Lebrón Benton, when the automobile got out of control and left the highway. The defendant filed a purely defensive answer which denied all material allegations of the petition, but failed to pray for any affirmative relief. Thereafter, plaintiff, without first obtaining leave of the court, voluntarily dismissed said suit by directing the Clerk of the Superior Court of Catoosa County to strike same from the dockets of said court; the defendant then filed his motion to vacate and set aside the order of dismissal filed by the plaintiff; plaintiff then filed an answer and demurrer to such motion and when said demurrer came on for hearing and after argument of counsel, the trial court sustained same dismissing defendant’s motion to vacate and set aside said order of dismissal. Defendant excepted, assigns error and brings the case here for review. Held: Where, as here, it is not contended by plaintiff in error that the answer filed was in the nature of a cross-action, and no affirmative relief being prayed for, the answer is obviously purely defensive, and defendant in error was clearly within his rights to dismiss his action, either in term or vacation, without any leave or order of the court. Davenport v. Hardman, 184 Ga. 518 (192 SE 11); Kean v. Lathrop, 58 Ga. 355; Ayers v. Lamb, 65 Ga. 627; Evans v. Sheldon, 69 Ga. 100; Jackson v. Roane, 96 Ga. 40 (23 SE 118); Kiser Co. v. Bonnett, 157 Ga. 555 (122 SE 338). Accordingly, the trial court did not err in sustaining the demurrer and dismissing the motion to set aside and vacate the order of dismissal. Judgment affirmed. Frankum an.d Jordan, JJ., concur.