Gooch v. Coleman

*450 Cook, J., delivered the opinion of the court. This is an appeal from the circuit court of Panola county, and the only assignment of error is based upon the refusal of the trial court to permit the plaintiff to take a nonsuit under the circumstances, which will clearly appear from the following statement of the trial judge which appears in the record: “When both sides had rested, the defendant counsel announced they had a question of law to be presented and gave to the court the instruction in question. Upon the jury retiring, argument was proceeded with, whereupon, plaintiff’s counsel asked time to go to his office and look for further authorities in order to better satisfy himself and the court. That is, if the court had any doubt about the proposition. The court told Mr. Rainwater, counsel in question of plaintiff’s counsel, that he most seriously doubted the proposition as advocated by him: “Whereupon Mr. Rainwater, with associate counsel, went to his office and returned later, within one hour, with some Mississippi Reports and other books, and again presented his side of the case. Without further argument on the part of the defendant, the court announced he was sorry that all of us could not see the law alike: “Whereupon he announced the instruction would be given. At which time plaintiff’s counsel announced in view of the court’s holding that he would ask for a non-suit : “And the court, after considering the matter, is of the opinion that it would be unfair to grant a nonsuit, and acting with whatever discretion he may have in the premises, the nonsuit is denied and the peremptory instruction granted.” From the foregoing statement of the trial judge, it appears that the facts here involved are identically the same as were involved in the case of Schaffer v. Deemer Manufacturing Co., 108 Miss. 257, 66 So. 736, in which it was held that it was not error to refuse to grant a non- *451 suit when the request therefor was first made after the court had announced that a peremptory instruction for the defendant would be granted, and unless the rule announced in the Schaffer case has been modified by the later cases of Railroad Co. v. Williams, 109 Miss. 429, 549, 68 So. 776, 69 So. 215, and Edwards v. Railroad Co., 112 Miss. 791, 73 So. 789, the Schaffer case is controlling here. In the Schaffer case, supra, it is stated that — “At the close of the plaintiff’s evidence the court, on motion of the defendant, excluded it from the jury, and granted the defendant a peremptory instruction.” And when this statement is referred to the facts which the court then had before it, we find that the court had only announced that the motion would be sustained and a peremptory instruction granted. No instruction had been actually marked “given” by the court, and, in fact, there is no statute requiring this to be done. The statute does require that instructions shall be marked “given” by the clerk of the court before they are read or given to the jury, but in the Schaffer case it was expressly held that, where a peremptory instruction is 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 *452 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 Williams case, supra, the facts presented were the same as in the Schaffer case and the case at bar, except that in the Williams case when the plaintiff requested permission to take a nonsuit after the trial judge had announced his determination to grant the defendant a peremptory instruction, the judge then declined to sign or grant the instruction, but granted a nonsuit. On appeal from this judgment of nonsuit, the only point decided was that a judgment of nonsuit is not a final decision from which an appeal will lie; and the court having decided that it was without jurisdiction to entertain the appeal, the views expressed in the main opinion as well as in the opinion on the suggestion of error, upon .the right to a nonsuit generally, are necessarily dicta. In the main opinion, it is said that the .Schaffer case is distinguished from the Williams case on the ground that in the Schaffer case “the peremptory instruction had, in fact, been granted, ’ ’ but this attempted differentiation appears to be based upon a misconception of the facts involved. Up to the time a nonsuit was requested, the action of the court upon the motion to' exclude the testimony and grant a peremptory instruction was the same in each of these cases; that is to say, after the argument of counsel on this motion had been concluded, the court announced its decision to grant the peremptory instruction requested. In the Schaffer case the court refused to withdraw the decision and grant the nonsuit requested; while in the Williams case the decision was withdrawn and the nonsuit granted. On suggestion of error in the Williams case, it was said that “a plaintiff, as a matter of right, may suffer a voluntary nonsuit at any time before the jury retires to consider their verdict.” This is but the announcement of the statute on the subject, but it can have no application *453 where the court has dispensed with the “useless formality of having the jury to retire and actually find the verdict directed.” In the Edwards case, swpra, the trial judge had announced his intention to grant a peremptory instruction, marked the instruction ‘ ‘ given, ’ ’ and it had been by 'the clerk marked “given and filed.” The court then expressed an intention to submit the cause to a jury to return a verdict, and thereupon the plaintiff requested a nonsuit. This motion for a nonsuit was resisted by the defendant, but the court granted it, and a judgment of nonsuit was entered. At the succeeding term of court, after there had been a change in the personnel of the bench, the defendant moved the court to enter what they termed a judgment nunc pro tunc in favor of the defendant, based upon the peremptory instruction which they alleged was given by the court at the preceding term. This motion was sustained and a judgment for the defendant was entered, and from the rendition of this alleged judgment nimc pro tunc an appeal was prosecuted. It was held that in entering this purported judgment nunc pro tunc the circuit court undertook to review and pass upon the- propriety of its former rulings, made and entered at a previous term and in reference to a case over which it no longer had jurisdiction, and that — “The second judgment entered in the first suit does not possess the essential characteristics of a judgment nunc pro tunc, and was and is a nullity. ’ ’ After having disposed of the case upon the ground above stated, the court proceeded to consider the question of whether or not the trial judg*e committed error in allowing the plaintiff to take a nonsuit, and the ruling of the Schaffer case was expressly approved upon the two points therein decided; that is, first, that it is not error to refuse a nonsuit after a motion to exclude the evidence and grant a peremptory instruction has been sustained, and, second, that it is not necessary for the jury to retire to the jury room to consider a peremp *454 tory instruction. It was held, however, that after the circuit judge has granted a peremptory instruction he may “change his .opinion or ruling and withdraw the instruction or grant the plaintiff a nonsuit, provided always this is done ‘before the jury retire to consider its verdict’ in accordance with’the express provisions of section 802 of the present Code;” and provided also, we will add, that it be done before the jury is discharged from a consideration of the case where the . “useless1 ceremony of having the jury retire to consider a peremptory instruction” is dispensed with. After a careful and repeated consideration of fhe three cases herein discussed, we have readied the conclusion that the Schaffer case has not been overruled or modified, and that the case at bar is ruled by that case in which it was held that it was not error to refuse a nonsuit when it is requested after the court has announced its decision to sustain a motion to exclude the evidence and grant the defendant a peremptory instruction. Affirmed.