noting that a plaintiff is not permitted to voluntarily dismiss his suit if “the defendant has set up some ground for affirmative relief or some right or advantage of the defendant has supervened, which he has the right to have settled and concluded in the action. If the defendant sets up a counterclaim arising out of the same transaction alleged in the plaintiff’s complaint, the plaintiff cannot take a nonsuit without the consent of the defendant; but if it is an independent counterclaim, the plaintiff may elect to be nonsuited and allow the defendant to proceed with his claim.” (citation and quotation marks omitted)
How later courts described this case
- noting that a plaintiff is not permitted to voluntarily dismiss his suit if “the defendant has set up some ground for affirmative relief or some right or advantage of the defendant has supervened, which he has the right to have settled and concluded in the action. If the defendant sets up a counterclaim arising out of the same transaction alleged in the plaintiff’s complaint, the plaintiff cannot take a nonsuit without the consent of the defendant; but if it is an independent counterclaim, the plaintiff may elect to be nonsuited and allow the defendant to proceed with his claim.” (citation and quotation marks omitted)
- holding that defendant’s answer admitting allegations together with his prayer for absolute divorce “was, in effect, a counterclaim”
- defendant’s answer admitting allegations of the complaint and joining in plaintiff’s request for absolute divorce was deemed to be a counterclaim
- “. . . it would be manifestly unjust to allow a plaintiff, who comes into court upon solemn allegations, which, if true, entitle defendant to some affirmative relief against the plaintiff, to withdraw, ex parte, the allegations after defendant has demanded the relief to which they entitle him”
Written by the judges who cited it.
The opinion
Justice Huskins
dissenting.
I respectfully dissent from Part I of the majority opinion which upholds the decision of the Court of Appeals that the trial court properly set aside plaintiff’s notice of dismissal.
On 24 July 1973 plaintiff wife filed a complaint for absolute divorce alleging residence, marriage of the parties on 14 November 1958, their separation on 13 July 1972, and that they had lived separate and apart since that date. The complaint names the four children born of the marriage. She did not allege that she was a dependent spouse and did not seek alimony in her complaint.
On 9 August 1973 defendant filed answer which reads in pertinent part as follows:
“Now comes the defendant in the above entitled action, and in answer to plaintiff’s complaint, alleges and says:
1. That the allegations as set forth in paragraph 1 of plaintiff’s complaint are admitted.
2. That the allegations as set forth in paragraph 2 of plaintiff’s complaint are admitted.
3. That the allegations as set forth in paragraph 3 of plaintiff’s complaint are admitted.
4. That the allegations as set forth in paragraph 4 of plaintiff’s complaint are admitted.
5. That the allegations as set forth in paragraph 5 of plaintiff’s complaint are admitted.
Wherefore, the defendant having fully answered plaintiff’s complaint, joins in the prayer for relief, and prays the Court that the bonds of matrimony heretofore existing by and between the plaintiff and defendant be dissolved, and that the parties hereto be granted a divorce from each other; further, that the defendant waives right to file any further answer in this cause.”
On 18 November 1973 plaintiff filed a written “Notice of Dismissal” giving notice that the action “is hereby dismissed without prejudice to any rights of the plaintiff against the de *121 fendant” growing out of the marriage. Plaintiff stipulated that the costs should be taxed against her.
The case was apparently calendared for trial, notwithstanding plaintiff’s notice of dismissal, and on 7 December 1973 plaintiff filed an application for alimony under G.S. 50-16.2(9). She recited in this application that defendant had filed an answer joining in the prayer for an absolute divorce; that she had entered notice of dismissal and thus did not seek nor intend to obtain an absolute divorce herself; that four children were born of the marriage; that she is a dependent spouse; that defendant is an excessive user of alcohol so as to render her condition intolerable and life burdensome by' (a) constantly accusing her of infidelities, (b) berating and criticizing her, (c) cruel and barbarous treatment of her and the children; that she has been a dutiful wife and defendant’s conduct has been without any provocation whatsoever; that she has insufficient means whereon to subsist and thus prays for an order requiring defendant to pay subsistence and permanent alimony following the trial, plus counsel fees.
On 13 December 1973 Judge Robinson entered an order declaring plaintiff’s notice of dismissal void. The judge then heard the case, a demand for jury trial not having been made by either party, and defendant testified to the residence, marriage, and period of separation sufficient to support a judgment of absolute divorce. The judge refused to consider plaintiff’s application for permanent alimony and signed a judgment dissolving the marriage in these words:
“It is, Therefore, Ordered, Adjudged and Decreed that the bonds of matrimony heretofore existing between the plaintiff and the defendant be, and they hereby are dissolved, and the plaintiff and the defendant are granted an absolute divorce from each other.”
The Court of Appeals affirmed, and we granted certiorari to review that decision.
It is my view that the trial court erred in allowing defendant’s motion to set aside and declare void the plaintiff’s notice of dismissal. As I see it, the defendant did not file a “cross-action” or “counterclaim” or by his answer set up any ground for affirmative relief. He simply admitted the allegations in the complaint and prayed that “the bonds of matrimony heretofore existing by and between the plaintiff and defendant be dis *122 solved and that the parties hereto be granted a divorce from each other.” Such pleading may not be equated with a counterclaim or cross-action in which he himself seeks affirmative relief, i.e., an absolute divorce.
Rule 41(a) (1), Rules of Civil Procedure, provides, in pertinent part, that “an action or any claim therein may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before the plaintiff rests his case.” That is exactly what plaintiff did in this case.
Under our former practice, a plaintiff in a civil action against whom no counterclaim was asserted and no affirmative relief demanded had an absolute right to take a voluntary non-suit and get out of court at any time before verdict. Insurance Co. v. Walton, 256 N.C. 345 , 123 S.E. 2d 780 (1962); Mitchell v. Jones, 272 N.C. 499 , 158 S.E. 2d 706 (1968). This rule applied to actions for divorce. Cox v. Cox, 246 N.C. 528 , 98 S.E. 2d 879 (1957). Under Rule 41(a) (1), plaintiff has the same absolute right to get out of court at any time “before the plaintiff rests his case.” See Cutts v. Casey, 278 N.C. 390 , 180 S.E. 2d 297 (1971); Collins v. Collins, 18 N.C. App. 45 , 196 S.E. 2d 282 (1973); 1 Lee, N. C. Family Law, § 53 at 41 (Supp. 1974).
In my judgment defendant’s answer is simply a general admission of the allegations contained in the complaint and nothing more. The prayer itself contains nothing which may properly be classified as a plea for affirmative relief. Defendant doesn’t pray that he be granted an absolute divorce. He merely “joins in the prayer for relief, and prays the Court that the bonds of matrimony heretofore existing by and between the plaintiff and defendant be dissolved, and that the parties hereto be granted a divorce from each other. . . .” To say that defendant’s answer contains a counterclaim for affirmative relief which is legally sufficient to support the judgment for absolute divorce entered in the trial court requires more reaching and stretching than I am willing to do and violates all the rules of pleading with which I am familiar. Consequently, my vote is to reverse the Court of Appeals and remand this case to Meck-lenburg District Court for entry of an appropriate order declaring void the judgment signed by Judge Robinson dated and filed 13 December 1973. In my opinion no case was then pending in court because plaintiff had legally and effectively filed her written notice of dismissal as authorized by Rule 41(a) (1), *123 Rules of Civil Procedure. I regard the judgment for divorce as absolutely void.
Of course, if defendant’s answer is construed to assert a counterclaim or cross-action wherein affirmative relief is demanded, then I fully concur with the majority view expressed in Part II of the opinion that under G.S. 50-16.8 (b) and G.S. 50-11 (c) plaintiff’s application for permanent alimony in de-defendant’s “cross-action” for an absolute divorce was timely and appropriately made before defendant “obtained” his divorce. It is quite apparent that plaintiff did not “obtain” one despite the gratuitous action of the trial court. If the trial court intended to dissolve the marriage on the theory that defendant in his answer affirmatively sought such relief, then her application for alimony should have been passed upon “at the time of the rendering of the judgment for absolute divorce.” G.S. 50-11(c).
Chief Justice Sharp and Justice Branch join in this dissent.