Ex parte Green

131 So. 2d 705, 272 Ala. 395, 1961 Ala. LEXIS 447

Opinions

PER CURIAM.

The statement of the case is contained in the dissenting opinion of the Chief Justice.

Section 258 of Title 7, Code of Alabama 1940, provides:

“§ 258. Dismissal. — The plaintiff may dismiss his suit at any time, by causing the clerk to make on the docket an entry of dismissal. When the summons has been executed, notice must be given to the defendant of the intended dismissal.”

Relying on the provisions of the foregoing statute,, the rule nisi was issued in this cause. Judge Ervin has answered the rule nisi as indicated in the dissenting opinion of the Chief Justice. We are of the opinion that the plaintiff in the instant case has a right under the provisions of the foregoing statute to dismiss his suit in the Circuit Court of Mobile County, Alabama, either by filing motion to dismiss with the clerk or with the judge, as was done here.

It follows that the peremptory writ of mandamus should issue to Judge Ervin as prayed. It is so ordered.

■ LAWSON, SIMPSON, STAKELY, GOODWYN, MERRILL and COLEMAN, JJ., concur. LIVINGSTON, C. J., dissents.