Trusco Finance Co., Motor Contract Division v. McGee
| Decision Date | 13 January 1950 |
| Docket Number | No. 16880,16880 |
| Court | Georgia Supreme Court |
| Parties | TRUSCO FINANCE CO. (MOTOR CONTRACT DIVISION) v. McGEE et al. |
Syllabus by the Court.
Where the plaintiff in a pending bail-trover action for the recovery of an automobile, in which the defendant seeks no affirmative relief, dismisses the action, it is error for the court, on the defendants' motion, to reinstate such case, and enjoin the plaintiff from proceeding with a similar action for the same automobile in another court against a third party.
O. W. Roberts, Jr., Carrollton, for plaintiff in error.
Boykin & Boykin, Carrollton, Durwood T. Pye, Atlanta, W. S. Northcutt, Atlanta, for defendants in error.
On May 21, 1948, Trusco Finance Company instituted in Carroll Superior Court a bail-trover action against E. R. McGee, seeking to recover possession of a certain automobile. The defendant filed his answer, in which he denied the material allegations of the petition except the allegation as to his residence, which he admitted, and prayed 'that he be discharged without cost and that judgment be rendered by this court, finding in favor of defendant on each and every charge, and relieving defendant of all costs.' He also executed a replevy and forthcoming bond. On October 4, 1948, the plaintiff, by amendment, made Mrs. E. R. McGee a party defendant to the trover action, and she filed a motion to strike the amendment and that she be relieved as a party defendant, and also filed an answer in which she denied all of the paragraphs of the amendment and prayed that the prayers of the plaintiff be denied. On July 12, 1949, the plaintiff by its attorney entered a written order in said case, which was filed, dismissing the trover action, and paid the cost therein. On July 16, 1949, the defendants filed a pleading entitled in the bail-trover action and designated as an equitable bill in aid of their defense 'in the above-stated case,' in which they alleged: that the plaintiff had knowledge that the defendants, on October 16, 1948, had given a notice of vouchment to E. R. Spicer, and after the defendants had replevied the automobile, they permitted their son, E. A. McGee, to use the automobile in his personal business; that subsequently the plaintiff instituted in the Civil Court of Fulton County on July 12, 1949, a bail-trover action against E. A. McGee for recovery of the automobile which was the subject-matter of the trover action in Carroll Superior Court; that the plaintiff, without the knowledge or consent of the defendants or approval of the court, entered an order of dismissal in said case; and that said purported dismissal is void and of no effect because, (a) it was done for the express purpose of evading the jurisdiction of Carroll Superior Court; (b) the plaintiff had knowledge that the defendant Mrs. E. R. McGee had vouched E. R. Spicer into court; (c) the plaintiff could not legally dismiss this action, since the defendants' prayers were not only defensive, but embodied an element of cross-action by praying that title be adjudicated in the defendant E. R. McGee; and (d) the plaintiff's dismissal did not have the sanction or approval of the court. The prayers were: that the plaintiff be restrained from prosecuting his action in the Civil Court of Fulton County; that the marshal of that court be restrained from changing the status of the automobile; and that the court hear and determine all issues as made by the pleadings in Carroll Superior Court. The court granted a rule nisi on this amendment. The plaintiff filed its plea to the jurisdiction and objections to any further proceedings in said case, on the ground that there was no case pending in court to which the amendment could be applied, and prayed that the restraining orders theretofore granted be revoked. After hearing evidence and argument, the court, on August 19, 1949, entered an order setting aside and revoking the order of dismissal, and an order restraining the plaintiff from further prosecuting the suit in the Civil Court of Fulton County, and ordering the marshal of that court to deliver the automobile to the defendants. The case is before this court upon assignments of error on the order declaring the order of dismissal void, and on the order which restained the plaintiff from further prosecuting the bail-trover action in the Civil Court of Fulton County.
The plaintiff in any action, in any court, may dismiss his action either in vacation or term time, provided he shall not thereby prejudice the right of the defendant. After a plea of setoff or otherwise has been filed, the plaintiff may not dismiss his action so as to interfere with such plea, except by leave of court on sufficient cause shown, and on terms prescribed by the court. Code, § 3-510. One can thus voluntarily dismiss a petition without any leave or order of the court. Kean v. Lathrop, 58 Ga. 355(1). ...
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