Opinion
15337.
JANUARY 11, 1946.
Injunction, etc. Before Judge Humphrey. Jefferson Superior Court. September 7, 1945.
W. T. Revell, for plaintiff in error.
M. C. Barwick and Q. L. Bryant, contra.
As between the parties an order of dismissal, when signed by the judge. is immediately effective. When a pending case is so dismissed and stricken from the docket, further defensive pleading is a nullity and should be treated as such when presented for allowance.
No. 15337. JANUARY 11, 1946.
Otis Stevens filed an equitable proceeding in the Superior Court of Jefferson County against C. J. Bedgood, alleging that the defendant was a cropper on the plaintiff's land for 1944; that he had abandoned his crops and was interfering with the right to harvest them. He prayed for an injunction to prevent further interference. Bedgood filed an answer in the nature of a cross-bill, denying that he had abandoned his crops and that he was interfering with their harvesting. He prayed that the restraining order previously granted be dissolved; that an injunction be refused; that, if a temporary injunction should be granted, the court appoint a receiver to gather and market the crops; and that the plaintiff be enjoined from interfering further with the defendant's right to harvest the crops which he had produced. On the hearing for temporary injunction, the plaintiff moved to dismiss the action, whereupon the court granted this judgment: "Upon motion of plaintiff to be allowed to dismiss this action, it is ordered that the same be granted, leaving both plaintiff and defendant in the same be position they were before the bringing of this action. August 25, 1945." The words, "Dismissed and costs paid," were then entered on the appearance docket of the court. No exception has been taken to this judgment. On August 25, 1945, but after the order of dismissal had been signed and the case stricken from the docket, on motion of counsel for the defendant, a rule nisi was granted on the cross-bill, requiring the plaintiff to show cause on a named date why the prayers of the defendant should not be granted. At this hearing the defendant offered an amendment to his cross-bill, alleging that he was being allowed to harvest his crops without interference; that the relation between him and the plaintiff was entirely friendly; that he did not desire the appointment of a receiver; that he wanted the court to retain the cross-action and hold the case in abeyance; and that he desired an accounting from the plaintiff for any part of the crops gathered by him. The court then entered this judgment: "Defendant presented the above amendment to the court, and the same is hereby disallowed, it being tendered after the original petition was dismissed and order signed by the court allowing petitioner to dismiss the petition." Exception was taken to this judgment and to the order disallowing the amendment, and the case was brought to this court by direct bill of exceptions.
After a plea of setoff or otherwise shall have been filed, the plaintiff may not dismiss his action so as to interfere with such plea, unless by leave of the court on sufficient cause shown, and on terms prescribed by the court. Code, § 3-510. As shown by the statement of facts, the only affirmative relief sought by the defendant was the appointment of a receiver in the event that the court granted a temporary injunction, and an injunction restraining the plaintiff from interfering with the defendant's right to gather the crops he had produced. In Nicholson v. Cook, 76 Ga. 24, it was held: "Where two parties entered into a written contract, whereby one of them was to let the other have fifty acres of land, and was to furnish sufficient stock to cultivate it, and the other was to furnish the labor, and they were to divide the crops, if the former failed to furnish the necessary plow-stock and took charge of the crops, in the absence of any allegations of insolvency, there was an ample remedy at law, and a resort to equity was unnecessary." The same principle was applied in Casey v. McDaniel, 154 Ga. 181 ( 113 S.E. 804), where it was held that the court did not err in refusing an injunction. Unquestionably, the court considered this principle of law in determining whether sufficient cause had been shown for the dismissal of the entire case. "As between the parties an order of dismissal, when signed by the judge, is immediately effective." Hayles v. Southern Ry. (Dist. Ct. So. Dist. of Ga.) 25 F.2d 758 (3). A motion to dismiss a pending cause should be construed as a motion to strike the case from the docket. Brightwell v. Brightwell, 161 Ga. 89 ( 129 S.E. 658). The judgment in this case, which was granted on August 25, 1945, and was not excepted to, dismissed the entire case and was immediately effective, and the subsequent proceedings were a complete nullity. Cf. Davenport v. Hardman, 184 Ga. 518 ( 192 S.E. 11). The court, therefore, did not err in refusing to allow the proffered amendment.
Judgment affirmed. All the Justices concur.