Coker v. Mitchell

535 S.W.2d 175 (1976)

Clyde COKER, Petitioner,
v.
Ray MITCHELL and Max Atkins, Respondents.

No. B-5784.

Supreme Court of Texas.

March 31, 1976.

Robert G. Carter, Marlin, for petitioner.

John M. Hand, Marlin, Robert A. Canonico, Waco, for respondents.

PER CURIAM.

The Court of Civil Appeals (531 S.W.2d 204) has properly followed the rule of Smith v. Columbian Carbon Co., 145 Tex. 478, 198 S.W.2d 727 (1947), and allowed a non-suit sought in the trial court by the plaintiffs prior to announcement by the judge in open court that defendant's motion for instructed verdict would be granted. Under the rule in effect when this case was tried and when the Court of Civil Appeals opinion was written, the plaintiffs had the right to take the non-suit even though all parties had closed the presentation of evidence and the judge had informed them in chambers of his intention to grant the defendant's motion. The application is therefore refused, no reversible error. It should be noted that Rule 164, Tex.Rules Civ.Proc., as amended January 1, 1976, now allows plaintiff the right to a non-suit only until his own case-in-chief is rested.