Wood v. Ramond (1872) · DecisionDepot

Wood v. Ramond

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jan 15, 1872 No. No. 2,409Published

Before: Rhodes

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Holding. A defendant who moves for and is granted a nonsuit cannot subsequently introduce evidence to obtain a judgment on the merits, as the nonsuit effectively removes the plaintiff from the court.

Issues

Whether a defendant may introduce evidence to obtain a judgment on the merits after successfully moving for a nonsuit.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“if he move for a nonsuit, and the nonsuit be granted, he cannot proceed and have judgment on the merits; because, by reason of the nonsuit, the plaintiff is virtually out of Court.”

“A nonsuit, granted on the motion of the defendant, is equivalent, in its operation on the action, to a dismissal with the consent of the defendant.”

Synopsis

Nonsuit may be Waived and Judgment Taken on Mekits.—A defendant, conceiving that the plaintiff has failed to prove his case, may waive a motion for a nonsuit, and proceed to prove his own case, and have judgment on the merits.

Judgment on Merits not to be Taken after Nonsuit.—If a defendant move for a nonsuit, and it be granted, he cannot have judgment on the merits.

Nonsuit on Motion of Defendant.—A nonsuit granted on motion of the defendant is equivalent in its operation on the action to a dismissal with the consent of the defendant, even if the defendant has set up new matter and asked for affirmative relief in his answer.

By the Court, Rhodes, J.: The plaintiff commenced this action under the two hundred and fifty-fourth section of the Practice 0Act, to quiet his title to certain premises. The defendants, after denying most of the material allegations of the complaint, set up [645]wliat is claimed as new matter, and upon it demanded affirmative relief. Upon the hearing, the Court, on the defendants’ motion, ordered a judgment of nonsuit. The defendants, thereupon, offered to prove their allegations of new matter. The Court refused them permission to introduce evidence. This is alleged as error, and is the sole ground of the appeal.

A defendant, conceiving that the plaintiff' has failed to prove Ills case, may waive a motion for a nonsuit, and proceed to prove his own case, and have judgment on the merits. But if he move for a nonsuit, and the nonsuit be granted, he cannot proceed and have judgment on the merits; because, by reason of the nonsuit, the plaintiff is virtually out of Court. A nonsuit, granted on the motion of the defendant, is equivalent, in its operation on the action, to a dismissal with the consent of the defendant.

Judgment affirmed.

Wood v. Ramond

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