People's Bank of Talbotton v. Exchange Bank of Macon

• Citation: 46 S.E. 416,119 Ga. 366
• Parties: PEOPLE'S BANK OF TALBOTTON v. EXCHANGE BANK OF MACON.
• Decision Date: 13 January 1904
• Court: Supreme Court of Georgia

46 S.E. 416

119 Ga. 366

PEOPLE'S BANK OF TALBOTTON v. EXCHANGE BANK OF MACON.

Supreme Court of Georgia

January 13, 1904

Syllabus by the Court.

1. The general rule that the plaintiff may voluntarily dismiss his case is applicable in a case which has been referred to an auditor, exceptions to the auditor's report filed and sustained, and a judgment rendered by the Supreme Court reversing the judgment sustaining the exceptions, and in effect declaring that judgment should be entered in conformity to the auditor's report. The right of the plaintiff to voluntarily dismiss exists until the trial judge announces a decision striking or overruling the exceptions and ordering a decree entered in conformity to the report. It is not knowledge of the possible result of a case, but of the actual result, which takes away the right to dismiss.

Error from Superior Court, Talbot County; W. B. Butt, Judge.

Action by the Exchange Bank of Macon against the People's Bank of Talbotton. From a judgment of dismissal, defendant brings error. Affirmed.

Persons & McGehee and J. H. Martin, for plaintiff in error.

Bacon Miller & Brunson, J. J. Bull, and Hatcher & Carson, for defendant in error.

COBB J.

The Exchange Bank of Macon filed an equitable petition against the People's Bank of Talbotton praying that the defendant be required to transfer on its books certain shares of capital stock which had been transferred to plaintiff by one Estes. The defendant answered that Estes was largely indebted to the defendant, and set up that it had a charter lien upon the stock to secure the payment of the debt. The defendant did not, in its answer, pray for any affirmative relief against the plaintiff either by way of set-off or otherwise. The case was referred to an auditor, who was authorized to pass on all questions, both of law and fact. The auditor heard the case, and filed his report, finding that Estes was largely indebted to the defendant, and that it had a lien on the stock in controversy. The plaintiff filed exceptions of law and fact, and by consent the presiding judge passed upon the case without the intervention of a jury. The court rendered a decree in favor of the plaintiff requiring the defendant to transfer the stock in question. The defendant brought the case to this court, and the judgment was reversed. 116 Ga. 820, 43 S.E. 269. On the first day of the term of the superior court following the judgment of reversal, the remittitur having been duly transmitted, the judgment of the Supreme Court was made the judgment of the superior court. On the following day the case was called, and counsel for plaintiff moved to dismiss the case. Counsel for defendant objected on the ground that it was entitled to a decree in conformity with the judgment of the Supreme Court which was, in effect, a confirmation of the auditor's report. The court allowed the plaintiff to voluntarily dismiss the case, and to this judgment the defendant excepted.

The Code declares that the plaintiff in any case in any court may dismiss his action, either in vacation or term time. Civ Code 1895, § 5044. And that a petitioner may dismiss his petition at any time, either in term or vacation, so that he does not thereby prejudice any right of the defendant; but that if claims by way of set-off or otherwise have been set up by the answer, the dismissal of the petition shall not interfere with the defendant's right to a hearing and trial on such claims in that proceeding. Civ. Code 1895, § 4970. It has been held that the plaintiff's right to dismiss cannot be exercised after a verdict, or a finding by the judge, which is equivalent thereto, has been reached, if he has acquired actual knowledge of the verdict or finding, whether the same has been published or not. Merchants' Bank v. Rawls, 7 Ga. 191, 50 Am.Dec. 394; Peeples v. Root, 48 Ga. 592; Cherry v. Building & Loan Association, 55 Ga. 19; Meador v. Bank, 56 Ga. 605 (4); Brunswick Grocery Company v. Railroad Company, 106 Ga. 272, 32 S.W. 92, 71 Am.St.Rep. 249. The principle at the foundation of these decisions is that, after a party has taken the chances of litigation, and knows what is the actual result reached in the suit by the tribunal which is to pass upon...