
    Gulf & S. I. R. Co. v. Williams.
    [69 South. 215—68 South. 778.]
    Dismissal and Nonsuit. Voluntary. Discretion.
    
    A plaintiff, as a matter of right may suffer a voluntary nonsuit at any time “before the jury retires to consider their verdict,” and the trial court has no discretion in the premises.
    Appeal from the circuit court of Lamar county.
    Hon. A. E. Weathersby, Judge.
    On suggestion of error. For former opinion see 68 So. 776.
    
      Wells, May & Sanders, for appellant.
    . J. W. Cassedy, Salter é Hatliorm and Currie & Currie, for appellee.
   Cook, J.,

delivered the opinion of the court.

In response to the suggestion of error, we wish to withdraw this expression from the opinion dismissing this appeal, viz.: “The granting of the nonsuit was a matter addressed to the discretion of the trial judge.” Plaintiff, as a matter of right, may suffer a voluntary nonsuit at any time “before the jury retire to consider their verdict,” and the trial court has no discretion in the premises. Before the jury retired to consider their verdict in the present case, plaintiff' elected to take a nonsuit, and that ended the matter; the plaintiff’s case then on trial was dismissed, and defendant has no right to complain.

Suggestion of error overruled.

Smith, C. J.

(dissenting).

I must adhere to the views expressed in my former dissenting opinion. I neither dissent from nor concur in those expressions contained in the former, as well as the present opinion in chief, dealing with this case on its merits, but wish to be understood as confining my opinion solely to whether or not the judgment appealed from is of such character as to entitle appellant to have it reviewed in this court; that being the only question presented by this motion.  