Boone & Howison v. Bush

• Decision Date: 12 December 1891
• Citation: 17 S.W. 792,91 Tenn. 29
• Parties: Boone et al. v. Bush et ux.
• Court: Tennessee Supreme Court

17 S.W. 792

91 Tenn. 29

Boone et al. v. Bush et ux.

Supreme Court of Tennessee.

December 12, 1891

Error from circuit court, Sumner county; A. H. Munford, Judge. Reversed.

Caldwell J.

E. T Bush and wife commenced this action in the circuit court of Sumner county to recover from Boone & Howison $1,500 as damages for misrepresentations alleged to have been made by them in the sale of 30 barrels of seed Irish potatoes. Among the several defenses interposed by the defendants was a plea of set-off, in which they averred that the plaintiff owed them $150 for said potatoes, and sought a judgment for the same. The case was once tried in the circuit court, and appealed in error to this court. Here the judgment below was reversed, and the case remanded for a new trial. ^[1] Thereafter, when called for a second trial in the circuit court, the plaintiffs appeared, and voluntarily dismissed the suit. The defendants objected to the dismissal, so far as their claim against the plaintiffs was concerned, and sought a trial on their plea of set-off; but judgment was pronounced and entered dismissing "the whole suit, including the set-off and cross-action of the defendants." From this judgment defendants have appealed in error.

Generally a party plaintiff may dismiss his suit whenever he chooses to do so, and the defendant will not be heard to object. In the ordinary case the defendant's attitude is one of resistance merely, and his only object is to defeat the plaintiff's action. He has no other interest in the litigation; hence, if the plaintiff comes and voluntarily dismisses his suit, the defendant must acquiesce; he can ask nothing more. By the voluntary dismissal everything is accomplished which could be attained by a trial and successful defense. That rule, however, is not applicable in the case before us. This is an exceptional case, wherein the attitude of the defendant is both defensive and aggressive not defensive merely, as in the ordinary suit. By section 1 c. 53, Act 1815, justices of the peace were authorized to render judgment in favor of a defendant pleading a set-off for such sum as might appear to be due him in excess of the demand established against him by the plaintiff. 2 Scott, Intest. Laws, p. 206; Code, § 4160. That act materially changed the attitude of the parties to such a case, and conferred upon the defendant therein such interest and right in the litigation that the plaintiff could not dismiss his suit at pleasure, and thereby deprive the defendant of a trial on his plea of set-off. It was so adjudged in Riley v. Carter, 3 Humph. 232. The act of 1815 related alone to cases originating before justices of the peace; but a similar provision was made by section 2, c. 259, Acts 1851-52, with reference to cases brought in the circuit courts of the state. Code, § 2922. This enactment changed the attitude and affected the interests and rights of the parties litigant in the circuit courts in the same manner and to the same extent as those of parties to a litigation before justices of the peace were changed and affected by the act of 1815; consequently the same reasoning by which the plaintiff's right to dismiss his suit was denied in the case of Riley v. Carter, supra, is available to show that the plaintiffs in the case before us had no power to dismiss their suit over the objection of the defendants, and that the action of the circuit judge in permitting the dismissal was erroneous. In Galbraith v. Railroad Co., 11 Heisk. 169, it was decided that a plaintiff in an action at law in the circuit court could not dismiss his suit, after an account had been ordered, and a report made, showing a balance in favor of the defendant on his plea of set-off.

Though the plaintiff, in the cases contemplated by the acts of 1815 and 1851-52, has no power to dismiss his suit, it has been several times held that the defendant's right to judgment for balance in his favor on a plea of set-off is incidental to and dependent upon the plaintiff's having actually established a debt in some amount against him; and that if upon trial it turned out that the defendant owed the plaintiff nothing in the first instance, the right of set-off would not exist, and the defendant could have no recovery against him for a proven debt. Edington v. Pickle, 1 Sneed, 122; Brazelton v. Railroad Co., 3 Head, 571; Baker v. Grigsby, 7 Heisk. 627; Galbraith v. Railroad Co., 11 Heisk....