Long v. Thwing

Per Curiam. The record before us contains the following averment: “The Court, after hearing the evidence in the cause, find for the defendant. It is, therefore, considered that the defendant recover of the plaintiff his costs expended. Whereupon, the plaintiff moves the Court for leave to suffer a non-suit, which motion was resisted by the defendant, but sustained by the Court, and a non-suit granted — to which opinion of the Court in sustaining said motion and granting the non-suit, the defendant excepts.” This ruling is plainly erroneous. After the finding and [180] judgment, the plaintiff should not have been allowed to suffer a non-suit. See Doughty v. Elliott, 8 Blackf. 405. J. B. Niles and A. L. Osborn, for the appellant. The judgment is reversed with costs. Cause remanded with directions to the Circuit Court to render judgment for the defendant below.