Opinion
No. 37354.
May 22, 1950.
1. Appeal — voluntary nonsuit.
No appeal will lie from an order granting permission to enter a voluntary nonsuit granted before a requested peremptory instruction has been given, although the trial judge had announced his intention to give the requested instruction.
Headnotes as approved by Alexander, J.
APPEAL from the circuit court of Adams County; R.E. BENNETT, Judge.
Brandon, Brandon, Hornsby Handy, for appellant.
The court below erred in permitting the plaintiff to take a voluntary nonsuit without prejudice to his rights to file suit again against this defendant for the same alleged cause of action and in refusing to enter final judgment in favor of the defendant (this appellant) finally dismissing this suit against the plaintiff.
The defendant Johns-Manville Products Corporation was entitled to have the court below sustain its motion to exclude the evidence and direct a verdict for the defendant at the time the plaintiff first rested in the trial of this case, and was all the more entitled to the peremptory instruction which was by it requested when both the plaintiff and the defendant had rested their case. The circuit judge was eminently correct in concluding to grant and in granting to the defendant the peremptory instruction, as was done.
There was nothing further for the trial judge to do but to enter judgment for the defendant. There was nothing further for the jury to do, whatsoever. There was nothing further for the clerk of the court to do but to write on the peremptory instruction the word, "Given", in accordance with the provisions of Sec. 1530 Code 1942, and to enter the judgment of the court on the minutes of the court.
This cause having proceeded to a full trial upon the merits and the cause having proceeded to such point, and such steps having been taken, that the defendant had secured a substantial right which would be destroyed by a dismissal of the suit, a nonsuit by the plaintiff should not have been permitted. Mitchell v. Film Transit Co., 194 Miss. 550, 13 So.2d 154, et seq.; Schaffer v. Deemer Manufacturing Co., 108 Miss. 257, 66 So. 736; that which has been said by Mr. Chief Justice Smith in his dissenting opinion in the case of Gulf S.I.R. Co. v. Williams, 109 Miss. 549, 68 So. 776, at page 778.
The language employed by this Court in the Schaffer v. Deemer Manufacturing Company case, supra, is most certainly controlling here wherein the Court, after having quoted from the statute to the effect that, "Every plaintiff desiring to suffer a nonsuit on trial shall be barred therefrom unless he do so before the jury retires to consider of its verdict", said as follows:
"When a peremptory instruction has been granted, the cause stands in the attitude that it would have, had it been submitted to a jury and a verdict returned; for, where a peremptory instruction is granted, it is not necessary for the court to go `through the useless formality of having the jury to retire and actually find the verdict directed; but the court should simply' render `judgment as if upon verdict found'. Hairston v. Montgomery, 102 Miss. 364, 59 So. 793. To require a jury, under such circumstances, to retire and actually find the verdict, when no discretion had been left to it in the matter `would be', as was said in Bee Building Co. v. Dalton, 68 Neb. 38, 93 N.W. 930, 4 Ann. Cas. 508, `as useless and idle, and almost as absurd, as the archaic practice of withdrawing a juror in order to secure a continuance'. Moreover, a request for a peremptory instruction presents an issue of law to be tried by the judge without the intervention of a jury, and therefore comes within the rule of the common law hereinbefore set forth, which prevents a nonsuit after `the judge has pronounced his judgment'. In the language of the court in Bee Building Co. v. Dalton, supra: "`To permit a party to dismiss under such circumstances is, in substance, to grant him a new trial after he has been fairly defeated, and to deprive his adversary of the fruits of a fairly won victory. It is contrary to good sense and sound policy to allow a party to take his case from one court to another until fortune favors him with a judge who is willing to accept his view of the law or his construction of the evidence. "Such a mode or proceeding would", as was said in Conner v. Drake, 1 Ohio St. 166, 170, "be trifling with the court as well as with the rights of defendants." One who is defending against a claim which he believes to be unjust ought not to be subjected to the expense of litigation which settles nothing. And since he is not permitted to choose another forum when it is discovered that the court is against him, it is manifestly unfair to give the plaintiff an unlimited freedom of choice.' The case of State v. Powers, 52 Miss. 198, while not directly in point, is not without value in this connection.
"There is a line of cases which would authorize a plaintiff to demand to be nonsuited, even after the granting of a peremptory instruction; but an examination of them will disclose that they were decided upon the theory that it was necessary for the jury to formally return the verdict directed before it could be entered. Among these cases are Oppenheimer v. Elmore, 109 Iowa 196, 80 N.W. 307; Vertrees v. Newport News Co., 95 Ky. 314, 25 S.W. 1; Chicago, etc., Ry. Co. v. Metalstaff, 101 F. 769, 41 C.C.A. 669; Gassman v. Jarvis (C.C.A.) 94 F. 603."
Jos. E. Brown, and Berger Callon, for appellee.
In Gulf S.I.R. Co. v. Williams, 109 Miss. 549, 68 So. 776, the Court had before it this exact question. In that case plaintiff had previously filed his suit in Smith County and had asked for and was granted a voluntary nonsuit after the court had announced its intention of granting the defendant's motion for a peremptory instruction. The Court held that it had no jurisdiction, and dismissed the appeal, saying: "A voluntary dismissal or nonsuit by plaintiff after defendant had moved for a peremptory instruction and the court had indicated its intention of giving such instruction was not a final judgment within Code 1906, par. 33, providing that an appeal may be taken to the Supreme Court from any final judgment, and an appeal would not lie therefrom by defendant.
"Where a judgment recited that a defendant moved for a peremptory instruction, which motion was sustained, but that on application of plaintiff the Court revoked the motion and permitted plaintiff to take a nonsuit, and an additional judgment recited that on motion of plaintiff a nonsuit was granted, the plaintiff was allowed to withdraw the suit without prejudice to the right to bring another suit, the judgment was one of nonsuit.
"Though the circuit judge had announced his intention of granting a peremptory instruction for defendant, which would have been proper, where a written instruction had not been given, it was within the discretion of the judge to refuse to give such instruction and on plaintiff's motion to grant a nonsuit, especially in view of Code 1906, #802 (Section 1538, Code of 1942) providing that every plaintiff desiring to suffer a nonsuit shall be barred therefrom unless he do so before the jury retires to consider its verdict, and Section 803 providing that plaintiff may suffer a nonsuit or dismiss a cause in vacation."
In this opinion the Court distinguished this case from Schaffer v. Deemer Mfg. Co., supra, and again in Edwards v. Yazoo Mississippi Valley Railroad Company, 112 Miss. 791, 73 So. 789. The Court reiterated this doctrine and discussed the holding in Schaffer v. Deemer Mfg. Co., 108 Miss. 257, 66 So. 736.
In Keith v. Yazoo M.V.R. Co., 164 Miss. 566, 145 So. 227, the Court had this to say: "It is not required when a plaintiff takes a nonsuit that he shall show, in order to obtain the nonsuit, that he has a meritorious cause of action which he can and will adequately state in a new declaration. For all the court may know or may be required to know, the nonsuit is for the purpose of abandoning the action or suit altogether. Often a nonsuit is taken for the purpose of making a more thorough study of the facts in the light of developments since the action was begun, and even sometimes it is to enable plaintiff to make a more comprehensive study of the applicable law. But whatever the reason for the nonsuit, the plaintiff has a right to take that step at any time before the jury retires to consider of its verdict, Section 594, Code 1930, or before the court has finally instructed the jury to return a verdict for the defendant. Schaffer v. Deemer Mfg. Co., supra. A nonsuit may be taken even after the trial judge has announced that he will give a peremptory instruction so long as the action announced has not been finally taken."
A similar decision of the Court will be found in Hill, et al. v. Johnson-Cone Brick Co., et al., 180 Miss. 305, 177 So. 520.
At the conclusion of the testimony, appellant, as defendant, moved for a directed verdict in its favor. After the trial judge had indicated an intention to grant the motion, the plaintiff requested, and moved for, a nonsuit. It was granted. The appeal is from the order sustaining the motion.
What happened is shown by the judgment of the trial judge, who stated: "Whereas, after the introduction of all of the testimony and after both the Plaintiff and Defendant had rested the case in the trial of this cause, both the Plaintiff and Defendant requested the Court to give peremptory instructions for them respectively to the Jury, and which instructions in writing were submitted by counsel for the Plaintiff and Defendant in this cause, and after the Court had announced that it would give the Defendant its requested instruction whereby the Court was requested to instruct the Jury to return a verdict herein for the Defendant; the Plaintiff, then, immediately and before the Court had actually written `Given' on the Defendant's requested peremptory instruction, and before the Jury had actually retired to consider their verdict, requested the Court to permit him to enter a voluntary nonsuit herein, to which the Defendant objected; and whereas, the Court then and thereafter granted the Plaintiff permission to take a voluntary nonsuit."
We are not faced with such situations as were presented in Hill v. Johnson-Cone Brick Co., 180 Miss. 305, 177 So. 520, where nonsuit was denied when requested during the judge's expression of his opinion, nor that in Schaffer v. Deemer Mfg. Co., 108 Miss. 257, 66 So. 736, where the motion was denied after the judge had "pronounced" his judgment.
This case is one where nonsuit was granted and before the peremptory instruction requested had been given. Under such circumstances no appeal will lie. Gulf S.I.R. Company v. Williams, 109 Miss. 549, 68 So. 776. The appeal must therefore be dismissed.
Appeal dismissed.