McCarley v. McCarley

PARKER, Judge.

Plaintiff first assigns error to the court’s action in granting defendant’s motion to set aside her notice of dismissal. Plaintiff contends that under G.S. 1A-1, Rule 41 (a) (1), a plaintiff in a civil action has the unfettered right to have the action dismissed by filing a notice of dismissal at any time before the plaintiff rests his case, regardless of whether defendant has filed an answer seeking affirmative relief. We do not agree.

Prior to adoption of our new Rules of Civil Procedure, it was settled practice in this State that when the defendant had asserted no counterclaim…