WALTER P. DAVISON, Appellant, v. ETTA DAVISON, Appellee.

MOTION TO WITHDRAW APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT, MONTSERRADO COUNTY.

Decided February 3, 1928.

1. The withdrawal of a suit after a jury has been empanelled and sworn, in law is a retraxit, and where the suit is renewed, it should be pleaded in the answer as a bar to the second action.

2. In a divorce case the plea of collusion cannot be raised for the first time in the appellate court.

After appeal from a judgment for the plaintiff in an action of divorce, and before call of the case, motion by appellant to withdraw appeal granted.

N. H. Sie Brownell for appellant. A. B. Ricks for appellee.

MR. JUSTICE T. E. BEYSOLOW delivered the opinion of the Court.

This cause was tried and determined at the February term of the First Judicial Circuit Court, Montserrado County; a verdict was rendered against the defendant the 21st of February, 1927, and final judgment given on the first of March, 1927, to which final judgment defendant excepted and prayed an appeal to the Supreme Court of Liberia, at its November term, 1927, in which case the appellee seeks to divorce her husband in the court below.

Before the call of the case the appellant applied to this Court to withdraw his case which was in accord with law. See Johns v. Hirsch, I L.L.R. 387 (1902). The Court is of the opinion that the withdrawal of a case may be filed at any time before the suit is ready for trial and that the case is ready to be considered upon trial within the meaning of the statute after it is called and the suitors called at the bar by the clerk. In the present case the withdrawal having been filed at the clerk’s office prior to the case being called up for hearing, it is a right which the appellant may exercise.

The withdrawal of a suit after a jury has been empanelled and sworn in law is a retraxit and where the suit is renewed it should be pleaded in the answer as a bar to the second action, but when the answer fails to raise the plea it will be taken as a waiver.

RETRAXIT: The act by which the plaintiff withdraws his suit. It is so called from the fact that this was the principal word used when the law entries were in Latin. A retraxit differs from a non-suit, the former being the act of the plaintiff himself, for it cannot even be entered by attorney and it must be after declaration filed, while the latter occurs merely in consequence of the neglect of the plaintiff. A retraxit also differs from nolle prosequi. The effect of a retraxit is a bar to all actions of a like or similar nature. N olle prosequi is not a bar even in a criminal prosecution, says Judge Bouvier. B.L.D., “Nolle prosequi.”

Counsel for appellee contended in this case with great legal ability that a client cannot withdraw his case without notice to his counsel, especially in divorce cases, wherein the interest of the co-respondent is also involved; and further, it is collusive for one party after taking out an appeal in a divorce suit to withdraw his case without allowing it to be heard and decided by the appellate court. But the Court says in this case the counsellor had both notice and instruction to withdraw the appeal in writing. There is an exception to a general rule when the interest of the co-respondent is involved in the litigation or divorce suit, wherein the said co-respondent obtains leave of the court to become co-defendant in the court below; but where the co-respondent refuses or neglects to deny the allegations of the plaintiff, said co-respondent cannot seek protection in the appellate court. The question of collusion in a divorce suit is a special plea in bar to the action under the statute and must be raised in the defendant’s answer and proved during the trial; failure to do so is a waiver and cannot be raised in the appellate court unless the collusion is brought out in the course of the evidence during the trial in the lower court wherein the court under the statute may deny the divorce. But the said issue of collusion cannot be legally raised for the first time in the appellate court. Therefore this Court allows the withdrawal of appellant with the reservation therein contained that the party withdrawing shall pay all costs in the case of the withdrawal; and it is so ordered.

See Authority: B.L.D. 212, 2687-2706, 3098; Lib. Stat. (Old Blue Book) 44., § 23.

Motion granted.