Howe v. Harroun

Catón, J. Unlike the common law our statute authorizes the parties, by mutual consent, to submit issues of fact to the court for trial in place of a jury; but this statute prescribes no time within which the plaintiff shall submit to a nonsuit, or be deprived of his right to do so. By the common law the plaintiff could take a nonsuit at any time before the verdict of the jury was announced to the court. And we have a statute which further restricts the right requiring the plaintiff to take a non-suit before the jury leaves the bar to deliberate upon their verdict. But in the case before us there is no law limiting the right to any particular time. It is not a very easy matter to say what the rule should be. Both by the common law and by our statute, when the case is tried by a jury, the plaintiff, before he determines whether he will take a nonsuit, not only has an opportunity of knowing precisely what the testimony is upon wMch his rights depend and upon which the jury are to act, but he also hears the charge of the court to the jury, so that he knows by what rules of law the jury are to be governed in deciding upon those facts. And all know, who have carefully observed the course of nisi prius trials, that it is as necessary to understand how the law is to be laid down to the jury as to know what are the facts, to enable a party judiciously to determine whether or not to take a nonsuit; while it may be conceded, with equal propriety, that the party should not know what is the opinion of the jury. Now, both these desirable ends cannot be attained when the court tries the question of fact in place of the jury. Either the plaintiff must have the benefit of the views of the court upon the law by which the case is to be governed, which can only be done after the court has expressed an opinion, or else he must be deprived of a right which was always guaranteed to him by the common law, and which is preserved to him by our statute in all cases of jury trial. It is true it may be impracticable to secure to him the right of knowing the views of the court upon the law of the case without Ms also becoming informed of its views of the facts. Were it practicable, we should certainly sanction the rule which should secure it. As it is, we must either abridge or extend the common law right. We prefer to adopt the latter course, as we think more conducive to justice, and hold that the plaintiff must have the right to take a nonsuit after .the court has announced its opinion and before a note thereof is entered. We are aware that a different rule was adopted in Indiana, but the reasoning which led to that decision does not strike us with the same force that it did that court. We are of opinion that the court erred in refusing to allow the plaintiff to take a nonsuit, and the judgment must be reversed and the cause remanded. Judgment reversed.