Haire v. Perry

Munson, J. The plaintiff appeared but declined to proceed, and the justice dismissed the suit for want of evidence. Was the plaintiff entitled to an appeal? V. S. 1286 fixes the time for appearance, and provides that judgment may be entered on non-suit or default against th'e party who does not appear. V. S. 1298 provides that no appeal shall be allowed when a judgment is rendered by non-suit or default. It is said in Smith v. Crane, 12 Vt. 487, that [478] a non-suit is a neglect of the plaintiff to appear and prosecute his suit, or a voluntary withdrawal from the suit after appearance. The defendant contends that, if the plaintiff appears and fails to prosecute, it amounts to a voluntary withdrawal and justifies an entry of non-suit. It is true that in most courts a judgment of non-suit is proper upon a failure to prosecute after appearance. But we think that in the statute regulating appeals in justice cases the term has reference only to the want of appearance, and that when the plaintiff appears and remains in court, no judgment not consented to can be entered against him that will disentitle him to an appeal. We understand that our justice practice has always been in accordance with this view. Judgment affirmed, and cause remanded.