Huffstutler v. Louisville Packing Co.

• Decision Date: 14 January 1908
• Citation: 154 Ala. 291,45 So. 418
• Parties: HUFFSTUTLER v. LOUISVILLE PACKING CO.
• Court: Alabama Supreme Court

45 So. 418

154 Ala. 291

HUFFSTUTLER v. LOUISVILLE PACKING CO.

Supreme Court of Alabama

January 14, 1908

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

Action by the Louisville Packing Company against Hamilton H Huffstutler. From a judgment granting a motion of plaintiff to dismiss the suit, defendant appeals. Affirmed.

Defendant interposed as a defense to the suit a counterclaim by way of set-off and recoupment. After the plaintiff had made out its case, which was not denied by the defendant, and after the defendant had introduced evidence of his counterclaim or set-off, the plaintiff offered to take a nonsuit, with bill of exceptions. The court refused to allow the plaintiff to take this nonsuit, and there was verdict and judgment for the defendant against the plaintiff in the sum of $620. The plaintiff thereupon moved the court to set aside the judgment, on the ground that the court erred in not allowing plaintiff to take his nonsuit, and from this motion setting aside the verdict and judgment this appeal is prosecuted.

B. M Allen, for appellant.

Vonell Thompson, for appellee.

ANDERSON J.

The general rule is, where the plaintiff has instituted a civil action, he has the right to dismiss or discontinue at his own cost at any time before verdict. This practice has been adopted, even in those cases where the defendant has pleaded a set-off and introduced evidence to sustain it. Griel v Loftin, 65 Ala. 591; Branham v. Brown's Adm'x, 1 Bailey (S. C.) 262; Cummings v Pruden, 11 Mass. 206; Waterman on Set-Off, 659, 660; Breese v. Allen, 12 Ind. 426; Moore v. Bres, 18 La. Ann. 483.

It is insisted by counsel for the appellant that the rule above declared is merely applicable to the common law, which does not authorize judgment over for the defendant when the cross-demand exceeds the plaintiff's claim; that our statutes authorize a judgment over for the defendant, upon pleas of set-off and recoupment; and that what was said in the case of Griel v. Loftin, supra, was dictum. We concede that what was said in said case, on this subject, was dictum, as this question was not there involved; but the expression of the writer seems to be fortified by the weight of authority, and what was there said is applicable in jurisdictions where judgment over is provided, as well as under the common law. Anderson v. Gregory, 43 Conn. 61; Merchants' Bank of Canada v. Schulenberg, 54 Mich. 49, 19 N.W. 741. This Michigan case was by a divided court, and resulted in an affirmance of the doctrine that the plaintiff can dismiss his suit at any time before verdict, although the defendant claimed a judgment over, and was authorized, under the statute, to recover for said excess. The opinion which controlled in this case was rendered by Cooley, C.J., and as it deals with several authorities on the subject, including the case, relied upon by appellant's counsel, of Riley v. Carter, 3 Humph. (Tenn.) 230, we quote at length: "In this case the defendant relied upon a set-off, which, he claimed, was larger than the plaintiff's demand, and he brings the case to this court, assigning for error the order of the circuit court permitting the plaintiff, notwithstanding his objection, to submit to a nonsuit. The general right of the plaintiff to discontinue his suit, or to submit to a nonsuit, at any time before verdict, is undoubted; and, in the absence of any statute taking away the right, it exists in the cases where set-off is relied upon to the same extent as in other cases. This is fully recognized in Cummings v. Pruden, 11 Mass. 206, and Branham v.

Brown's Adm'x, 1 Bailey (S. C.) 262 . In several states statutes have been passed taking away the right; but we have no such statute. The fact that the statute of set-offs permits judgment to be taken by the defendant for the balance found due him does not preclude a discontinuance. Cummings v Pruden, supra. But it is said there are decisions to the contrary of these, and several are referred to. The Texas cases are not in point, as they are decided under the civil law, which does not prevail in this state. Egery v. Power, 5 Tex. 501; Walcott v. Hendrick, 6 Tex. 406; Bradford v. Hamilton, ...