Cook v. Walker

24 Ga. 331

• Court: Supreme Court of Georgia
• Decided: January 15, 1858
• Status: Published

Opinion

McDonald J.

By the Court. delivering the opinion.

The only question in this caséis upon the judgment of the Court below granting the motion to complainants to dismiss their bill without prejudice.

Under former decisions of this Court in this cause, which have each been made the judgments of the Court below, the bill was still in Court, and the complainant had the unquestionable right to move to dismiss it. The judgment of the Court below on the demurrer to this bill, ordering it to bo sustained, was reversed by this Court, that the complainant might be allowed to amend his bill. The judgment of reversal annulled the judgment on the demurrer and retained the bill in Court. The subsequent refusal of the amendment did not, of itself, reinstate judgment on the demurrer and carry the bill out of Court. There must have been an order or decree of the Court. It does not appear that there was either. A plaintiff may move to dismiss his own bill, with costs, as a matter of course, at any time before a decree. 2 Daniel’s Gh. Pr. 929. Before the orders of 1845,, which are not of force here, a complainant was not prevented from filing anew bill for the same object at any subsequent time. Ib. 930, side paging. ■

Judgment, affirmed.