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Rule 162. Dismissal or Nonsuit (1988)

TEXT

At any time before the plaintiff has introduced all of his evidence other than rebuttal evidence, the plaintiff may dismiss a case, or take a non-suit which shall be entered in the minutes. Notice of the dismissal or non-suit shall be served in accordance with Rule 21a on any party who has answered or has been served with process without necessity of court order.

Any dismissal pursuant to this rule shall not prejudice the right of an adverse party to be heard on a pending claim for affirmative relief or excuse the payment of all costs taxed by the clerk. A dismissal under this rule shall have no effect on any motion for sanctions, attorney's fees or other costs, pending at the time of dismissal, as determined by the court. Any dismissal pursuant to this rule which terminates the case shall authorize the clerk to tax court costs against dismissing party unless otherwise ordered by the court.

Amended by order of July 15, 1987, eff. Jan. 1, 1988. Corrected and clarified by order of Dec. 16, 1987, eff. Jan. 1, 1988: In the title, Non-suit has been corrected.

Comment. The purpose of this rule is to fix a definite time after which a party may not voluntarily dismiss or non-suit the cause of action. In addition, these amendments will not disturb any pending motions for sanctions or attorneys' fees that were filed before the motion for non-suit or dismissal.

ADVISORY OPINIONS

Question: What is appearance day with reference to withdrawing a case from the court's docket without the necessity of the judge's dismissing it?

Answer: Under Rule 237 appearance day applies to a defendant who has been served or who has accepted service and the rule prescribes the time and manner in which he shall answer. If no citation is ever issued on the petition and there is no acceptance of service there is no appearance day under the rules. Rules 22 to 26, inclusive, require the clerk when a suit is filed to docket the same, etc. We think a suit in which no citation has been issued or served, although not specifically mentioned in the rule, as well as one in which citation has been issued and served and no answer has been filed, may be discontinued in vacation under Rule 162 upon payment of costs, as the underlying principle is the same. It is an orderly procedure, and no one can complain of the discontinuance.

During term time, discontinuance as to a defendant who has not been served is allowable under Rule 161. We think it is desirable and the better procedure that dismissals during term time be made by the judge, if practicable. See Bridgman v. Moore, 143 Tex. 250, 183 S.W.2d 708, syllabi 8 and 9 (1944).

8 Tex. B.J. 129 (1945).