Baldwin v. Roman

HARALSON, J. — It is well settled, that while a suit in its ordinary form is pending in a court of law, the [325] plaintiff lias, subject to certain exceptions, the absolute riglit, before or after issue joined and at any time before verdict rendered, to dismiss bis suit or take a voluntary non-suit.—Davis v. Forshee, 34 Ala. 108; Jennings v. Pearce, 99 Ala. 305; 6 Ency. Pl. & Pr., 883, 843; 1 Am. & Eng. Ency. Law (1st ed.), 184; Hawes on Parties to Actions, § 2. Tliis rule seems to be of universal application, except where by the proceedings, or by decree, whether final or interlocutory, the rights of a defendant have been so affected, or determined, as that the dismissal would prejudice them; as for instance, where a verdict has been rendered but not entered; or after an award made; or where set-off has been pleaded to a suit commenced and continued so long by plaintiff, that the statute of limitations has effected a bar to the action on the set-off, etc.—Authorities, supra; Chicago & A. R. Co. v. Rolling Mill Co., 109 U. S. 715; Allen v. Schermerhorn, 14 How. Pr. (N. Y.) 287. No rights of the garnishee in this case seem to have been determined by the court. He answered that he was not indebted to the defendant; the plaintiff sought to contest his answer, which right was denied by him on the ground that the contest was not interposed at a term of the court when the contest was allowable, which contention was ruled against him by the court, and before any trial of the issue, the plaintiff, by leave of the court, took a non-suit. In this proceeding, so far as any right of the garnishee is concerned, he stands now, as to his legal rights, where he stood before he was garnished. The fact that he may be subjected to another suit in garnishment by the plaintiff is no more than any other defendant is liable to after a non-suit has been taken by the plaintiff in an action against him. There being no error in this respect, the other errors which are assigned on the record cannot be considered. Affirmed.