
    21085.
    RIDDLE v. RIDDLE.
   Duckworth, Chief Justice.

Upon the call of this divorce case in the court below, counsel for the plaintiff announced that his client was not present and he was not ready for trial, and counsel for the defendant announced that he had an amendment to offer in- the form of a cross-action, on which he would like to proceed; at which time opposing counsel stated he was dismissing the petition and proceeded to write a voluntary dismissal of the petition during the colloquy between counsel and the court as to the allowance of the amendment. Thereafter, the court disallowed the amendment, stating in the order that the main case was dismissed in open court before the amendment was offered. The exception is to that judgment. Held:

Submitted November 14, 1960

Decided January 5, 1961

Rehearing denied January 20, 1961.

Herbert Edmondson, for plaintiff in error.

C. Winfred Smith, contra.

While all parties, under Code § 81-1301, whether plaintiff or defendant and whether in a court of law or equity, may at any stage of the cause amend their pleadings in all respects, provided there is enough to amend by, yet the plaintiff, under Code § 3-510, in any action may dismiss at any time, provided he shall not prejudice any right of the defendant, and particularly after a plea has been filed, so as to interfere with said plea, unless by leave of the court on sufficient cause shown and on terms prescribed by the court. Since the cross-action had not been filed at the time of the dismissal, and even though the amendment was being considered by the trial judge at the very moment the petition was dismissed, the main petition carried with it the negative answer so that the court did not err in refusing to allow the cross-action to be filed, there being nothing to amend after the dismissal. Kean v. Lathrop, 58 Ga. 355; Jones, Drumright & Co. v. Thacker & Co., 61 Ga. 329 (2); Spence v. Dyal, 202 Ga. 739 (44 S. E. 2d 658).

Judgment affirmed.

All the Justices concur.  