McCarley v. McCarley

EXUM, Justice.

I

The Court of Appeals held it proper for the trial court to set aside plaintiff’s attempted voluntary dismissal under General Statute 1A-1, Rule 41(a)(1) [hereinafter Rule _]. This much of its decision is correct.

This statement of our practice as it existed before the adoption of present Rule 41 occurs in 2 McIntosh, North Carolina Practice and Procedure § 1645 (2d ed. T. Wilson and J. Wilson 1956) :

While the plaintiff may generally elect to enter a non-suit, “to pay the costs and walk out of court,” in any case *112in which only his cause of action is to be determined, although it…