Gordon v. Goodell

Mr. Justice Breese delivered the opinion of the Court: Among the errors assigned on this record which we deem material to notice are the following: In refusing plaintiff’s motion for leave to submit to a nonsuit; in refusing his motion to vacate the judgment, and in refusing certain instructions asked for by the plaintiff. The record shows a regular trial, pending before a jury, on issues made up by the parties. After the evidence was closed, and before the cause was submitted, the plaintiff asked leave to take a nonsuit, which the court denied, and exception taken. By our practice act it is provided that every person desirous of suffering a nonsuit on trial, shall be barred therefrom, unless he do so before the jury retire from the bar. Scates’ Comp. 261, § 29. By implication, most clearly, a plaintiff has a right to suffer a nonsuit on trial, if he makes his motion in time. A judgment had previously been confessed on the cause of action then on trial, and the pleas put in by the favor of the court on the petition of the defendant, without, however, vacating the judgment for which the defendant had also petitioned. This judgment was held for the benefit of the plaintiff, as his security, as is the usual practice. The plaintiff, when he entered the motion for leave to take a nonsuit, also entered his motion to vacate this judgment, which the court also denied. The judgment being for the plaintiff’s benefit, we see no reason why the court should not have vacated it, on his motion, and by allowing the nonsuit, remit the parties to their original positions. The motion to take a nonsuit being in time, should have been allowed, notwithstanding the judgment. This non-suit would have operated to vacate the judgment, as that rested on the recovery on the issues made up. We think the court erred in denying the motion. We see no error in refusing the instructions asked by the plaintiff, for the reason, he made no objection, on the trial, to the testimony of the defendant. He permitted him to become a witness, generally, to prove other facts than the “ fact of usury,” and cannot now object, or put his objection in the form of instructions. For the reasons given, the judgment is reversed and the cause remanded. Judgment reversed.