Hall v. Schuchardt

Miller, J., delivered the opinion of the Court. This cause was, under the provision of the Constitution, submitted to the Court for determination without the aid of a jury. The sole question for review is presented by the appellants’ exception to the action of the Court in entering and recording a judgment of nonquit in the case. The action was against the appellants as drawers of a foreign bill of exchange. The material facts set out in the exception are these: the plaintiffs, after admission by defendants of the signatures of the drawers and endorsers of the bill, offered evidence of its protest for non-acceptance and notice thereof to the defendants. Objections were made to the admissibility of this testimony, which were argued, the defendants’ counsel opening and closing thereon. After the argument one of the counsel for the plaintiffs said the case had taken a rather unusual course, as the defendants’ counsel had closed the argument, but that he submitted the case to the Court without further argument. The Judge then delivered an oral opinion sustaining the objection to the protest, and ruled that either by itself or in connection with the other testimony it "was inadmissible, and that the plaintiffs were not entitled to recover, but made no entry in the case. At this point the plaintiffs’ counsel took an exception to the ruling, [19] and asked the Court to suspend further proceedings until they could consult with their clients, who resided in New York, whether they should submit to a nonsuit, with the expectation of supplying the requisite testimony, or suffer a judgment to be entered and take an appeal. To this the defendants’ counsel objected, and said it was too late to move for a non pros, in a case submitted to the Court without a jury, after the Court had decided it. The Judge, however, said the plaintiffs had yet a right to non pros, the ease, and as it was still open for that purpose, he would grant the delay asked for. Subsequently, on the same day, the plaintiffs’ counsel directed the entry of non pros., which being brought to the notice of the Court, a judgment of nonpros, was accordingly entered. Injury trials of civil causes, after the jury have agreed and before the verdict is taken, the plaintiff is called by the clerk, and if he fails to answer in person or by counsel, no verdict is given, the jury are discharged, and judgment of nonsuit passes against him. Up to this point of time, and until the verdict is actually announced by the foreman in response to the question “ what say you, do you find your verdict for the plaintiff or for the defendant ? ” the right to suffer a nonsuit exists, but ceases after the plaintiff has answered and the foreman announces the verdict. He is called for the purpose of allowing him an opportunity to determine whether he will take a nonsuit or hear the verdict, and he must then make his election. A nonsuit is in many instances of importance, because it gives the party the right to commence the same suit again, and alter its status by additional testimony, whereas if he answers and hears the verdict, he must stand on the case as then presented, and rely upon his exceptions and upon obtaining a reversal of the judgment on appeal. The submission of a cause to the Court for trial where the Judge acts both as Court and jury does not deprive the plaintiff of his right to a nonsuit, and care should be taken to so conduct the trial as to afford him the same opportunity of ex [20] ercising it as if a jury were sworn. In the case before us the Judge ruled the proffered testimony inadmissible, and thus far he was undoubtedly determining a question of law proper for the Court to decide if there had been a jury trial. But after ruling out the testimony he then said, in the same connection and as part of the same ruling, “ that the plaintiffs were not entitled to recover,” and this expression is seized upon and construed as a decision of the case on the facts, in making which the Judge was acting as the jury, and as being equivalent to a verdict for the defendants after the plaintiffs had been called and had answered. Though this has been presented with much ability and force by the appellants’ counsel, it is not, we think, a just and fair construction of the action of the Judge. In Evans’ Practice, 402, it is said with entire correctness, that “ the expressions common in English books, that the Judge directed a nonsuit, and others of similar import, mean no more than this, that the Judge expressed in that form of words his opinion that the plaintiff was not entitled to recover, and that the party submitted to a nonsuit rather than the Judge should enforce his opinion by a direction to the jury as to their verdict.” If, therefore, this had been a jury trial and the Judge, after ruling out the evidence and ascertaining the plaintiffs had no more to' offer, had said he was of opinion they were not entitled to recover, and would direct the jury to render a verdict for the defendants, the right of the plaintiffs then to suffer a nonsuit could not admit of doubt. Giving to this exj>ression of the Judge a fair and reasonable construction, and considering the connection in which it was used, and the course of the trial up to that point, we áre of opinion it is to be treated as the expression of his opinion as a Court, that the plaintiffs were not entitled to recover, to be afterwards enforced by his verdict or finding, as a jury, for the defendants, and an entry of judgment accordingly, intervening which was the right to a nonsuit. It would have been better practice, as it certainly would have obviated all difficulty in the case, if the Judge, [21] after ruling the testimony inadmissible, had withheld any further expression of his opinion, until he had either directed a formal call of the, plaintiffs, or asked of their counsel whether they would take a nonsuit, or stand on their exception to his ruling, but failure to observe this more formal procedure cannot deprive the plaintiffs of a valuable right which, in a jury trial they could have exercised after every thing here relied on as a verdict had been said by the Court. But, as we have said, this expression was not a verdict either in substance or form, and the ruling excepted to must therefore be affirmed. (Decided 10th February, 1871.) Judgment affirmed.