Rickets v. Sexton

• Decision Date: 02 February 1976
• Citation: 533 S.W.2d 293
• Court: Tennessee Supreme Court
• Parties: Lon A. RICKETS et al., Appellants, v. Margie SEXTON et al., Appellees.

Page 293

533 S.W.2d 293

Lon A. RICKETS et al., Appellants, v.Margie SEXTON et al., Appellees.

Supreme Court of Tennessee.

Feb. 2, 1976.

John T. Buckingham, Headman, Stivers, Buckingham & Humphrey, Knoxville, for appellants.

Walter L. Fuller, Jr., Oak Ridge, John M. Davis, Wartburg, for appellees.

OPINION

HENRY, Justice.

The only question presented on this appeal is the right of a plaintiff to take a voluntary nonsuit or to dismiss an action without prejudice, under the provisions of Rule 41.01, Tenn.R.Civ.P., in the face of the resistance of his adversary.

The Chancellor, apparently pitching his decision on the age and infirmity of one of the partiesdefendant, held that a nonsuit would be prejudicial and 'disallowed' the same.On the same day, when plaintiffs did not come into court to prosecute their action, he dismissed the complaint with prejudice.

We reverse.

As we held in Stewart v. University of Tennessee, 519 S.W.2d 591(Tenn.1974):

Rule 41.01(1) Tenn.R.Civ.P., provides for the Free and unrestricted right of the plaintiff(at various stages of the proceedings) to take a voluntary nonsuit or to dismiss his action without prejudice except:

a. in class actions

b. in cases where receivers have been appointed

c. where precluded by specific statute

d. in cases where a motion for summary judgment is pending.

The rule specifies that a plaintiff'shall have the right to take a voluntary nonsuit or to dismiss an action without prejudice by filing a written notice of dismissal at any time before the trial of a cause'.This portion of the rule is not dependent upon the determination of the trial judge.The lawyer for the plaintiff is the sole judge of the matter and the trial judge has no control over it.It is not necessary that he approve the action of plaintiff's counsel by signing any order; nor may he nullify the rules by an order 'disallowing' the nonsuit.All that is required to dismiss prior to the trial, in the absence of the existence of any of the exceptions above noted, is the filing of a written notice of dismissal.

In this caseplaintiffs' counsel, 'gilded the lily' by filing a pleading captioned 'motion for voluntary dismissal' which was actually in the form of an order tendered for the signature of the Chancellor.It bore the signature of plaintiffs' then counsel of record.This hybrid document was filed one day Before the trial date.We hold that it was substantial compliance with the rules and constituted a 'written notice of dismissal.'...