Bryan v. Pinney

PORTER, J. The only question necessary to be determined in this ease is whether in this territory an -involuntary nonsuit can be granted. By the late Compiled Laws (sec. *35 2586) a nonsuit was granted (1) “by tbe plaintiff bimself at any time before trial, on tbe payment of costs; . . .(5) by tbe court upon motion of tbe defendant, wben upon trial tbe plaintiff fails to prove a sufficient ease for tbe jury.” Tbe Revised Statutes (sec. 764) provides: “At any time before tbe jury bave retired tbe plaintiff may take a nonsuit, but be shall not thereby prejudice tbe right' of an adverse party to be beard on bis own claim for affirmative relief.” Tbe legislature, having acted on tbe same question, leaves out clause 5 of nonsuit of Compiled Laws. Can anything be plainer than a denial of an involuntary nonsuit, except wherein affirmative relief was asked by defendant? Tbe mode is pointed out, and we cannot get around it. Had there been no legislation on tbe subject, we'would be bound by tbe decisions of tbe supreme court of tbe United States, which has appellate jurisdiction over tbe courts of tbe territory. In Castle v. Bullard, 23 How. 172 , tbe court says: “Circuit courts bave no power to grant a peremptory nonsuit against tbe will of tbe plaintiff. It was expressly so held by this court in Elmore v. Grymes, 1 Pet. 471 , and tbe same rule was alsd affirmed in D’Wolf v. Rabaud, 1 Pet. 497 . In tbe case last named tbe defendants at tbe trial, after tbe evidence for tbe plaintiff was closed, moved tbe court for a nonsuit, which was denied, and tbe defendant excepted, and sued out a writ of error; but this court held that the refusal to grant tbe motion constituted no ground for tbe reversal of tbe judgment ; remarking, at tbe same time, that a nonsuit cannot be ordered in any case without tbe consent and acquiescence of tbe plaintiff.” And in Crane v. Lessees of Morris, 6 Pet. 609 , on same question of nonsuit, say “that this point was no longer open for controversy.” See, also, Silsby v. Foote, 14 How. 222 . It is well to say that on tbe trial in tbe court below, while objection was made that tbe nonsuit was improperly granted, tbe attention of tbe court was not directed to tbe existing statutes on tbe subject, nor were tbe decisions of tbe United States supreme court presented. Tbe judgment of tbe court allowing tbe nonsuit is reversed.