"At any time before the jury has retired, the plaintiff may take a non-suit, but he shall not thereby prejudice the right of an adverse party to be heard on his claim for affirmative relief. When the case is tried by the judge, such non-suit may be taken at any time before the decision is announced.' The provision that the plaintiff 'shall not thereby prejudice the right of an adverse party to be heard on his claim for affirmative relief' is not intended, we think, as a restriction upon or limitation of, the right to take a nonsuit, but is simply a prohibition against the exercise of that right having any prejudicial effect upon the defendant's claim for affirmative relief. Thomason v. Sherrill, 4 S.W.2d 304 (Tex.Civ.App., dism. w.o.j.). Once a claim for affirmative relief has been filed, a plaintiff's right to move for a dismissal or nonsuit is limited to his cause of action only. Hoodless v. Winter, 80 Tex. 638, 16 S.W. 427 (Sup.Ct. 1891); State v. Roberson, 409 S.W.2d 872 (Tex.Civ.App.). Nor will the order granting the nonsuit be construed as an attempt to dismiss the plea for affirmative relief, unless susceptible of no other construction. Bailey v. Federal Supply Company, 287 S.W. 1090 (Tex.Com.App. 1926); 20 Tex.Jur.2d, Sec. 41, page 226. The order of dismissal signed by the trial court purports to dismiss the claim being asserted by appellee.
Cited in support is the case of Thomason v. Sherrill, Tex. Civ. App. 4 S.W.2d 304, Id., 118 Tex. 44, 10 S.W.2d 687. In that case it was held by the Supreme Court the order appealed from was an order refusing the motion of defendant to reinstate what he alleged was a cross action seeking affirmative relief against plaintiff.
R.S. 1925, Art. 2182; Brooks v. O'Conner, 120 Tex. 121, 39 S.W.2d 22; Bailey v. Federal Supply Co., Tex.Com.App., 287 S.W. 1090; Thomason v. Sherrill, Tex. Civ. App. 4 S.W.2d 304; Cornelius v. Early, Tex. Civ. App. 24 S.W.2d 757. We think the court did err in overruling plaintiff's exceptions to those parts of defendant's answer specially denying that valid notice of injury had been given or claim for compensation made by the proper party in due time or in proper form and manner, or that any award had been made by the Industrial Accident Board.
We think it is evident that the action of the court in overruling the motion was injurious to the rights of appellant and erroneous. 15 Tex.Jur. 236 et seq; Hoodless v. Winter, 80 Tex. 638, 16 S.W. 427; H. H. Watson Co. v. Cobb Grain Co. (Tex.Com.App.) 292 S.W. 174; Thomason v. Sherrill (Tex. Civ. App.) 4 S.W.2d 304; Id., 118 Tex. 44, 10 S.W.2d 687. The judgment of the district court is reversed, and the cause remanded
This action of the trial court is sustained by numerous authorities. Bailey v. F. Supply Co. (Tex.Com.App.) 287 S.W. 1090; Thomason v. Sherill (Tex.Civ.App.) 4 S.W.2d 304; Cornelius v. Early (Tex.Civ.App.) 24 S.W.2d 757, affirmed by Commission in 120 Tex. 335, 39 S.W.2d 6; Thompson v. Gaither (Tex.Civ.App.) 45 S.W.2d 1106; 15 Tex.Jur. 243-246, § 10, and cases cited. A second rule applicable in the instant case is stated in 15 Texas Jurisprudence, 246, as follows: "Where the pleadings of both parties involve the same subject matter upon which each seeks affirmative relief, the plaintiff may not take a nonsuit if it would materially affect the legal status of the subject matter of the suit or any party to it."
Judgment affirmed. See, also (Tex.Civ.App.) 4 S.W.2d 304. Walter R. Fly and John Davis, both of Dallas, for appellant.
Certainly where a case is "in all things dismissed from the docket," there is nothing left for further adjudication. In support of their motion to dismiss, appellees have cited Thomason v. Sherrill (Tex.Civ.App.) 4 S.W.2d 304, 306, and Bailey v. Federal Supply Company (Tex.Com.App.) 287 S.W. 1090. Both of these cases were appeals from orders of dismissal.
The request made by the company was to nonsuit its cause of action against Bailey, and not to dismiss Bailey's cause of action against it." In Thomason v. Sherrill, 4 S.W.2d 304, 306, we had this matter under consideration, and there gave examples to show how the statute operates to prevent prejudice without a denial of the right of nonsuit, and, after conceding that, if upon the facts of any particular case, plaintiff could not take a nonsuit without prejudicing the claim of defendants asserting affirmative relief, such nonsuit must be denied, suggested that "we cannot, however, well see how such a condition could exist." We, however, need not go further now than to say that generally, if not always, the plaintiff may take a nonsuit without it having the effect to prejudice claims of defendants upon pleas seeking affirmative relief, and the record in this case is not one where, to prevent such prejudice, the right to dismiss must be denied.