Caroon v. Eubank , 30 N.C. App. 244 ( 1976 )

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226 S.E.2d 691 (1976) 30 N.C. App. 244
L. Reginald CAROON
v.
L. J. EUBANK, Jr., Trustee and First Federal Savings and Loan Association of New Bern, Inc., Original Defendants,
v.
James A. EZZELL, Additional Defendant.
No. 763SC31.
Court of Appeals of North Carolina.
July 21, 1976.
*692 Ward, Tucker, Ward & Smith, P. A. by Michael P. Flanagan, New Bern, for plaintiff-appellant.

Borden, Stith, McCotter & Stith by Laurence A. Stith, New Bern, for original defendants-appellees.

Lee, Hancock and Lasitter by C. E. Hancock, Jr., New Bern, for additional defendant-appellee.

MORRIS, Judge.

Plaintiff contends that the trial court erred in its entry of judgment denying his motion for return of funds made under G.S. 1A-1, Rule 41(a)(1), which provides that plaintiff may take a voluntary dismissal of his case without order of court by filing a notice of dismissal before plaintiff rests his case.

"Under the former practice a judgment of voluntary nonsuit terminated the action and no suit was pending thereafter on which the court could make a valid *693 order. 7 Strong, N.C.Index 2d, Trial, § 30, p. 317. We think the same rule applies to an action in which a plaintiff takes a voluntary dismissal under G.S. 1A-1, Rule 41(a)(1)." Collins v. Collins, 18 N.C.App. 45, 50, 196 S.E.2d 282, 286 (1973).

Sutton v. Sutton, 18 N.C.App. 480, 197 S.E.2d 9 (1973). See also In re Estate of Nixon, 2 N.C.App. 422, 163 S.E.2d 274 (1968).

There are undoubtedly unresolved issues with respect to this matter. Nevertheless plaintiff cannot be made to choose which remedy he will pursue before he takes a voluntary dismissal. Nor can he be forced to take a dismissal with prejudice under the circumstances here. To hold otherwise would be to say that G.S. 1A-1, Rule 41(a)(1) is without efficacy. The court's order recited that the matter before him was a motion "to release from the treasury of the Clerk of the Superior Court Division in Pamlico County, and where said action is pending, funds deposited as the amount of a bid at the foreclosure sale of certain properties in Pamlico County." (Emphasis supplied.) Plaintiff filed his notice of dismissal prior to filing the motion. At the time the motion was filed, no action was pending. Plaintiff is entitled to take a voluntary dismissal without prejudice and proceed thereafter in such a manner as he may be advised.

Reversed.

PARKER and MARTIN, JJ., concur.