Northern Pac. Ry. Co. v. Spencer

Mr. Justice King delivered the opinion of the court. 1. This appeal presents a unique ,a.nd probably an unprecedented situation. Defendant, by motion, demanded that the action be. dismissed for insufficiency of proof. Before being passed upon, and after defendant had rested his case, but before final submission of the cause, plaintiff also filed a motion, asking that the cause be dismissed, seeking thereby a voluntary nonsuit. The motion interposed by defendant came under subdivision 3, Section 182, B. & C. Comp., while plaintiff’s motion was under subdivision 1 thereof. By the introduction of evidence before disposal of the motion, defendant did not thereby waive his motion for nonsuit (Carney v. Duniway, 35 Or. 131 [57 Pac. 192: 58 Pac. 105].) 2. Until defendant’s motion was passed upon, the court had no authority either to make findings or to enter a judgment upon the merits. Carroll v. Grande Ronde Elec. Co., 49 Or. 477 (90 Pac. 903.) 3. As held in the case last cited, defendant’s motion, when granted, regardless of “how the'judgment may be framed, or what recitals it may contain,” could amount to nothing more than a dismissal without prejudice. Plaintiff’s motion was filed under ,a different subdivision of the same section, and, while under Section 182 of the Code it came too late (United States v. Humason [C. C.] 8 Fed. 73), it had for its object the same purpose as the motion filed by defendant, and constituted an implied consent thereto; thus bringing the case within the requirements of subdivision 2 of the section mentioned, amounting to a nonsuit by written consent of the parties. That the court so considered and treated it may be implied from the fact that findings were not made on any of the issues presented by the pleadings, as expressly required by Sections 158, 159, B. & C. Comp. See Jennings v. Frazier, 46 Or. 470, 472 (80 Pac. 1011); Freeman v. Trummer, 50 Or. 287 (91 Pac. 1077); Oregon Auto-Dispatch v. Portland Cord. Co., [253] 51 Or. 583, 585 (94 Pac. 36: 95 Pac. 498); Scott v. Ford, 52 Or. 288, 295 (97 Pac. 99.) 4. However, it appears from the errors assigned and arguments in the briefs of the counsel for the respective parties that this appeal is predicated upon the assumption that the judgment as entered, unless reversed or set aside, constitutes an adjudication on the merits, and therefore a bar to another proceeding; but, in the absence of findings on the issues, it cannot possibly have such effect. A dismissal without such findings places the cause in a position analogous to an action where a jury trial is had, and the proceeding dismissed without a verdict (Scott v. Ford, 52 Or. 288, 295 (97 Pac. 99); and, regardless of what may be recited in the judgment, it can have no other effect. This position is fully sustained in Carroll v. Grande Ronde Electric Co., 49 Or. 477 (90 Pac. 903), in which it is held that notwithstanding a judgment of nonsuit recited that certain facts were there determined, which is wanting here, it merely amounted to surplusage, and would not bar a subsequent action. Applying the principles, there enunciated to the case in hand, the issues here not having been passed upon, the judgment entered only amounts to a dismissal without prejudice, the costs being but an incident to the judgment, and not adding to its force or effect. Hoover v. King, 43 Or. 281, 286 (72 Pac. 880: 65 L. R. A. 790: 99 Am. St. Rep. 754.) The parties having received the relief demanded by their respective motions, neither is in position to complain. Finding no error in the record, the judgment is affirmed. Affirmed.