Kiser Co. v. Bonnett

122 S.E. 338, 157 Ga. 555, 1924 Ga. LEXIS 201

Opinion

Bussell, C. J.

(After stating the foregoing facts.) We find no error in the judgment of the chancellor. Section 5627 of the Civil Code (1910) is as follows: “Actions may be dismissed at any time. The plaintiff in any action, in any court, may dismiss his action either in vacation or term time, and, if done in term time, the clerk or justice shall enter such dismissal on the docket.” This section, taken from the act of 1843 (Cobb’s Digest, 475) has been of force for more than eighty years, and has appeared in all the Codes which have ever been adopted. As set forth in the act of 1843 itself, the act was designed to remedy an evil which had theretofore existed to the inconvenience of the people and to the encouragement of prolonged litigation. Section 1 of the act is as follows: “Whereas inconvenience and delay frequently occur by reason that parties plaintiff who commenced suits in the superior or inferior and other courts of this State cannot dismiss their actions except at the regular terms of said courts, be it therefore enacted, . . that from and after the passage of this act parties plaintiff who have commenced or may hereafter commence suits in the superior or inferior and other courts of this State, be and they are hereby authorized to dismiss their actions during the vacation of said courts, on the same terms they are now authorized to dismiss actions at the regular terms of said courts. Provided, that such dismissal shall be first entered on the docket by the clerk of the court in which said suit -may be pending, during the vacation of said court.” Obviously it was not intended that any plaintiff who desired to dismiss an action in the superior court would be required to obtain an order from the judge of the superior court before voluntarily withdrawing, of his own motion, a case in which such plaintiff had the paramount interest. It will be remembered that at that time the judicial circuits of this State, unlike those of the present era, covered many counties, and means of communication were very few. It will be noted that the privilege accorded the plaintiff of dismissing in vacation existed only as to “his” action; and as dismissal entailed upon the plaintiff the payment of the costs, there was then, and is now, but little reason why this right should not be accorded to every plaintiff in every case as given by the act of 1843. We do not think, therefore, that in case of a dismissal in vacation there is any necessity that the judge should be advised in advance; and as the duties of a judge of the superior court are sufficiently multitudinous, there are many reasons why his mind should not be distracted from more important matters.

The law provides, where the defendant sets up any affirmative defense by way of set-off or recoupment, that the plaintiff cannot dismiss his suit so as to affect the rights of the defendant; and it has been held that where a defendant has filed a plea in the nature of a counter-claim, the dismissal of the plaintiff’s petition did not affect the defendant’s right to proceed to recover the amount claimed in his answer. However, these principles do not seem to affect the present case. The plaintiff in error was told by the judge of the superior court that a petition of the same nature as the plaintiff in error was proposing to file had been sanctioned, and that a receiver had been appointed, and suggested to counsel to intervene in that petition. This was on February 23, 1923, and yet the plaintiff in error did not in fact ask an order permitting it to intervene until February 28, 1923. The plaintiff in error could easily have intervened before the plaintiffs, Miller Company and Neuberger & Sons, dismissed their suit; and apparently the only reason they did not do so was that they did not foresee the possibility of a settlement between the debtor and Miller Co. and Neuberger & Sons. Vigilantibus et non dormientibus jura subveniunt.

The point is made that the paper filed with the clerk, to wit: (after fully stating the case) “Now conies plaintiff and withdraws and dismisses the petition in the above case. This Feb. 26, 1923. Quincey & Bice, Attorneys for Plaintiff,” is insufficient because no entry of dismissal was made on the docket. Where the plaintiff dismisses his action in vacation, no entry is required to be made upon the docket. All such entries are to be made in term time. Why the change should have been made in the original requirement of the act of 1843, supra, from a requirement in that act that the entry of dismissal should be made in vacation to the requirement of the Code section as it appears in all of the Codes it is now profitless to inquire. But the Code is the law. Central Railway Co. v. State, 104 Ga. 831 (31 S. E. 531, 42 L. R. A. 518). It.is true that the mere omission of a statute from the Code does not always affect its validity (Daniel v. Jackson, 53 Ga. 87); but where the law as adopted as a part of the Code is entirely repugnant to the previous statute upon the same subject and the law as declared in the Code is adopted by the General Assembly, the effect is to enact the law as contained in the Code and to repeal any statute upon the same subject which is directly to the contrary of that contained in the Code. However, in this instance, we see a good reason why the provision as to the entry of the dismissal should have been changed from the requirement that the entry be made in vacation to the requirement that such entry be made by the clerk in term time. As just previously stated, it was not intended that the judge, who might be busily engaged in holding court in one of the several counties of his circuit, should be put to the trouble of signing an order for dismissal in a case in which no one had a right to object, and therefore there is no reason why the judge’s approval of the dismissal is required. In vacation thp judge is not concerned with the entries upon his docket. But when he goes to hold court he must inform himself as to what cases stand for trial and are open upon the docket. The clerk of the superior court is the custodian of the docket at such times as it is not being used by the judge, and the entry of dismissal by the clerk in term time enables the clerk to give to the judge the requisite information as to those cases which have been voluntarily dismissed, and thus -obviate the necessity of sounding such cases upon the docket. Under.this rule as thus practiced, the contingency suggested by plaintiff in error that it would be possible for a plaintiff to obtain from the judge an order dismissing the case and yet withhold the order from the clerk so that the court records would still show the action pending, although in fact it had been dismissed, is entirely obviated and cannot possibly arise. The plaintiff cannot dismiss his action without payment of the costs to the clerk, and therefore the cause may be dismissed in many instances with the knowledge of the clerk without the judge being aware of its dismissal; but it could not be dismissed by the judge in vacation, even if an order of the judge were required, without the knowledge of the clerk. If it is a mere voluntary settlement of the case by the plaintiff, it is not necessary that the judge should have knowledge of the dismissal except for his guidance in the call of the docket in term time. The appointment of a receiver does not alter the ease, even though the action is such that other parties may intervene if they wish. Primarily a plaintiff asks for extraordinary relief for his own benefit; and if he desires to discontinue his action and withdraw his request for extraordinary relief before rights have accrued to other parties by their intervention, such outside parties are in the same condition as if the petition had never been filed. It would be poor policy on the part' of the court to keep cases which had been settled between the parties upon the docket merely as a standing invitation to others to.enter the court.

Judgment affirmed.

All the Justices concur.