Smith v. Crane

The opinion of the court was delivered by Williams, Ch. J. — The question in this case arises on a motion to dismiss an appeal. The justice allowed the appeal and the county court dismissed it, on the ground that no appeal could be allowed where the judgment rendered was on a nonsuit. The statute does not admit an appeal to be taken from the judgment of a justice of the peace, rendered on nonsuit or default, and obviously has reference to a case where the party fails to appear, and not to one where there is an appearance on both sides and a trial and judgment had on the merits of the case. A nonsuit is a neglect of the plaintiff to appear and prosecute his suit, or a voluntary withdrawal from the suit, after appearance. The form of entering it is, that the plaintiff, having been called, fails to appear, and there is no form of the record of a judgment in which the court adjudge that “ the plaintiff become nonsuit.” It is never ordered in England against the will of the plaintiff. When he fails to make out a case the court direct him to be called and it is usual to submit, in such a case, to a nonsuit with liberty to move to set it aside ; but if the plaintiff thinks proper to answer when he is called, he may do so and insist upon the matter being left to a jury. In that case the jury must give in their verdict, and, if the court direct a verdict, a new trial may be moved for. A judgment, as in case of a nonsuit, if plaintiff neglects to bring his cause to trial, is authorized by statute in the English courts, and also here, when the party neglects to [491] produce books and writings in pursuance of a rule of court. Stat. p. 76. 57 sec, of Jud. Act. It appears, in this case, that the plaintiff did not submit to be nonsuited, nor did he withdraw from court, but the court, on a hearing, ordered and adjudged him to be nonsuit and rendered judgment for the defendant to recover his cost. This ¡pas a judgment upon the merits, on a hearing, and its character cannot be changed by being called a judgment of non-suit. We cannot consider this such a judgment by nonsuit as was contemplated in the statute, but a judgment on the merits, rendered by the justice, from which the party was entitled to appeal. The appeal was, therefore, proper3y granted and the judgment of the county conrt, dismissing it> must be reversed and the cause remanded to that court.