Withdrawal by some co-plaintiffs without consent does not bar a later partition suit where joint title and limitation remain in issue

A withdrawal of a suit with liberty to file afresh is effective only where the court has jurisdiction to grant that permission, which in a case involving several plaintiffs depends on consent from all plaintiffs when one seeks withdrawal. Because the record did not show consent by the remaining plaintiffs and they did not join the withdrawal petition, the earlier withdrawal could not operate as a lawful bar against the present plaintiff. In a partition dispute, the cause of action may recur, so a joint owner may maintain a later suit if subsisting joint title, possession, and limitation are established.

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Issues: Whether a suit withdrawn by only two of several plaintiffs without the consent of the remaining plaintiffs could be treated as a valid withdrawal with liberty to institute a fresh suit, and whether such withdrawal barred a later partition suit.

Analysis: The rule governing withdrawal with liberty to bring a fresh suit requires the court to have jurisdiction to grant permission, and that jurisdiction depends on compliance with the condition that all plaintiffs consent where one of several plaintiffs seeks withdrawal. Where the record did not show consent by the remaining plaintiffs and the withdrawal petition was not joined by them, the earlier withdrawal order could not operate as a lawful withdrawal binding on the present plaintiff. In a partition matter, the cause of action is recurring, and a joint owner may sue again if subsisting joint title and possession within limitation are shown.

Conclusion: The earlier proceedings did not bar the present partition suit on the basis of withdrawal, and the plaintiff was entitled to maintain the suit subject to proving subsisting title and limitation.

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