ATLANTIC OIL PRODUCING CO. v. JACKSON, District Judge, et al., 296 S.W. 283

GREENWOOD, J. Respondent Z. P. Perry brought suit in the Seventy-Seventh district court of Limestone county against relator, Atlantic Oil Producing Company, to recover damages for an alleged injury to the person of his wife and to certain personal property. After being duly cited, relat- or, before appearance day, filed its plea of privilege to be sued in Dallas county. Seven days later, relator presented its plea of privilege, and, before any controverting affidavit was filed, relator requested the transfer of the cause to Dallas county.

Instead of granting this request, the court, on motion of the plaintiff to be allowed to take a nonsuit, dismissed the cause. Relator asks the Supreme Court for a mandamus to compel the vacation of the order dismissing the case and the entry in lieu thereof of an order transferring the case to the district court of Dallas county, relying on certain expressions in the opinions of

Section B of the Commission of Appeals in Galbraith v. Bishop, 287 S. W. 1087, and Craig v. Pittman & Harrison Co., 250 S. W. 671, to the effect that, after a plea of privilege is filed, with no controverting affidavit, the only jurisdiction which the court can exercise is to transfer the case. Subsequent to the opinions of the Commission relied on by relator, it became necessary for

Section B of'the Commission to consider whether a judgment of nonsuit could be validly entered by the court in which an uncontroverted plea of privilege was pending. The Commission then concluded that, until a case has been actually transferred on plea of privilege — • “notwithstanding the fact that the court could not try and determine the cause of action presented by the pleadings, it still had jurisdiction of the subject-matter to the extent of recognizing the statement made by the plaintiff that it desired to’ take 'a nonsuit.

This statement of the plaintiff that it desired to take a nonsuit, when accepted and recognized by the court, legally speaking, was a discharge of the defendants fi’om the suit of the plaintiff.” H. H. Watson Co. v. Cobb Grain Co., 292 S. W. 177. We have no doubt that the right conferred on a plaintiff by

article 2182 of the Revised Statutes to take a voluntary non-suit in a case tried without a jury “at any time before the decision is announced,” is not lost by the filing of an uncontested plea of privilege under articles 2007 and 2008. Hence the action of the trial court in’ granting the nonsuit instead of being void was entirely correct. There are other reasons why relator does not show a right to the extraordinary remedy he seeks at the hands of this court.

If relator prevailed in this suit, the only right which it would maintain would be the right to have a suit reinstated against it for the recovery of damages, and a suit which confessedly might at once be discontinued in accordance with the manifested desire of plaintiff, in the district court to which relator contends the venue should be changed. We do not think the right to havé an action for damages continued against a defendant and for so brief a time can be made the basis for the issuance of a mandamus.

Instead, we agree with the Supreme Court of Missouri that, “in circumstances as above related,” the court “will not award a discretionary writ as now here prayed, for the mere purpose of determining an empty and barren technical • right in behalf of a' petitioner; it will ‘let well enough alone.’ ” State v. Associated Press, 159 Mo. 458, 60 S. W. 105, 51 L. R. A. 151, 81 Am. St. Rep. 368.

Townes’ Tesas Pleadings, at page 663, says “the effect of a discontinuance is to terminate that suit between the parties.” Courts will not act at the instance of 'a defendant for no other purpose than to renew litigation against himself. For, as said by the Appellate Division of the Supremé Court of New York: “A defendant cannot compel a plaintiff to litigate against his will, merely for the satisfaction of winning after, a trial. If the plaintiff does not wish to prosecute his action, the defendant cannot require him to do so.” Valentine v. Valentine, 134 App. Div. 665, 119 N. Y. S. 427.

The motion for leave to file the petition for mandamus is overruled. other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes