Daily capital journal. (Salem, Oregon) 1903-1919, 1911-10-23

Of the statute, but the demurrer hav-
ing been sustained, no counterclaim
existed, and the plaintiffs, having
eliminated from the record the orig
inal complaint by filing an amended
pleading by leave Of court were en-
titled, upon their motion therefor. to
voluntary nonsuit, in denying which
the court erred. In St Louis South
western Railway Company v. White
Sewing Machine Company, SO Ark
43l under a statute providing that an
action may be dismissed without pref
udiee, by the plaintiff before final
submission of the cause, and that in
all other cases upon the trial of the
action, the decision must be upon the
merits, It was held that in the inter-
ests of justice, the court might per-
NIT a plaintiff to withdraw a submis-
sion of his case and take a nonsuit
without prejudice. Mr.. Justice Wood
said: "The plaintiff under the stat
ute, may not demand as his right what
is within the discretion of the court,
in the interest of justice to permit. "
In Ashmead v. Ashmead, 20 Kan.
262, the court says that, After a
case has been finally submitted to the
jury or the court, the plaintiff has no
right to dismiss the action without
prejudice to future action; but while
all legal right on the part of the plain
tiff has ended, the court may, in it's
discretion and to prevent injustice and
wrong, permit the plaintiff to recall
such submission, and dismiss without
prejudice; and in such case the ac-
ton Of the court unless it has abused
its discretion, is no ground of error.
The provision of the statutes of Ar
kansas and Minnesota are more like
those of our own statute, than any
others which come to our notice The
| statute Of Minnesota, in addition to
its provisions for a nonsuit-similar
to those contained in subdivisions l,
and 3, sec. 1872, l.. o. L.-proyides
| that, all other modes of dismissing
an action, by nonsuit or otherwise,
are abolished: see Gen. st. MINI.
1878, c. Sc, sec. 262.
In Bettis V. Schreiber, 81 MINI. 329,
1t was held that the plaintiff in an
action, was not entitled to dismiss as
a matter of right under that statute
after the trial had actually COM
menced. In Anthem " Tarbox, As
Minn. /, the plaintiff sought to estab-
lish and enforce a mechanics lien;
defendants asserted the invalidity of
the lien and demanded that It be de-
clared void; held that, "The right to
dismiss upon the trial was clearly
within the discretion of the court, and
the record fails to show that there
was any abuse of this discretion"
In the case Of the United States ".
Humason, 8 Fed. II, relied upon by
defendants counsel, the court for very
cogent reasons, upon the trial of the
case before a jury, exercised its dis
erection and refused a nonsuit. Judge
Deadly said: Whenever the trial has
been commenced, the right of the
PLAINTIFF to become nonsuit, and vex
and harass the defendant with another
action for the same cause. is gone"
This was an action against a surety
upon an Indian agents bond, and the
alleged default and death of the prin-
cipal, occurred nearly fourteen years
before the action was brought, and
sixteen years before trial. 1t was not
claimed that there was error in re-
fusing a nonsult. A new trial was
asked on the ground of accident.
In Lando V. Chicago st. Paul, Min
neapolis & Omaha Railway company.
81 Minn. 279 an action for damages
for personal injuries, after the sub
mission of the testimony, counsel for
plaintiff asked to take a nonsuit which
was denied. Commenting thereon, the
court speaking through Mr.. Justice
Lovely, said Ordinarily courts are
very liberal in granting the favor
asked for in this case, when counsel
are mistaken or surprised in the pro-
duction of testimony to their disad-
vantage, and we think wisely so; 49,
The right under the statute &c. 8
MINI. 1894, sec. 54OS to have a case
dismissed after the trial had been
commenced, rests in the sound discre
tion of the trial court" \
In Hume V. Woodruff, 26 Ore. 373.
1t was held that the determination of
an issue presented by a demurrer was
a trial within the meaning of the
statute CL o. l., sec 1D3), and after
demurrer to the complaint had been
sustained, and the plaintiff by leave
OF court had filed an amended COM
plant, he was entitled as a matter of
right to a voluntary nonsuit at anv
time before the amended complaint
was disposed Of or trial had nn
some issue rendered by it. although
the amended pleading might in fact
Oe SUBJECT to the same objection as
the original. The amended complaint
was flled by leave of court, in grant
ing which, the court exercised its dis
erection whereby the plaintiff became
entitled to take a nonsuit.
IN the case at bar, the ruling upon
the demurrer was in favor of tbe
plaintltf' and the defendant, not elect
ing to stand upon his demurrer. was
granted leave to answer, which was
an exercise of discretion by the court
IT, u l.. sec. 10) an answer was filed
ana the cause proceeded to trial upon
the issues Of fact, which was a later
stage OF the case, when the nonsuit
was asked The plaintiff was not re-
Qulred to amend his complaint upon
faVorable' decision in regard thereto,
and we think the first contention of
defendant is included in the latter
Ihe court was not clothed with any
less authority in the exercise of its
discretion to allow or deny plaintiffs
motion for nonsuit than the court
exercised In Hume " Woodruff. The
allowance of the nonsuit was of the
same nature as the granting of new
trial To Dlaintiff ond ,,-,, ..,.s..-,--4 !