Merritt v. Campbell

By the Court, Wallace, C. J.: This is an action for the recovery of damages claimed to have been sustained by the plaintiffs in the destruction of their property by a fire, alleged to have been negligently kindled and carelessly tended by the defendant upon his own premises, and adjoining the premises of the plaintiffs, so that it spread and extended to the latter, consuming their fences, hay, farming utensils, etc. The action was commenced on the 25th day of April, 1870.

The defendant, among other defenses, pleaded that on the twenty-fifth day of November, 1869, the plaintiff commenced an action against him to recover damages for the same trespasses and injuries, and that thereafter such proceedings were had therein: that on the 17th day of January, 1870, by agreement of counsel, a judgment was rendered and entered by the Court to the effect that the cause be dismissed, each party paying his own costs, which said costs so adjudged against him, amounting to some thirty-five dollars, the said defendant had paid before the commencement of the present action. The defendant asked the Court to instruct the jury that the judgment dismissing the former action brought by the plaintiff was a bar to their recovery in this, but the Court refused to so instruct them, and its refusal in that respect is relied upon here as error.

It is an undoubted rule that a nonsuit, suffered for any cause, is not a bar to an action subsequently brought upon the same cause of action. To operate such a bar the judgment must have been one rendered upon the merits, or the proceedings in the former action must have amounted to a retraxit, as known in suits at common law, which, being “an open and voluntary renunciation of his suit in Court,” the plaintiff was not left at liberty to afterward renew it.

A retraxit at common law, it is true, must have been the act of the plaintiff appearing in his proper person in Court, and not for that purpose by his attorney. But under our statute concerning attorneys and counselors at law (Sec. 9) this authority must be considered to be conferred upon the attorney of record in a cause (Board of Commissioners v. [546]Younger, 29 Cal. R. 147), and his power extends to a proceeding of that character.

The statute (Prac. Act, Sec. 148) provides for both a judgment of nonsuit and a judgment of dismissal, and, by subdivision 2, it is provided that a judgment of dismissal may be rendered at the application of either party upon the written consent of the other. We are of opinion that such a dismissal, when had by such consent, amounts to the open and voluntary renunciation of a suit pending, which must be held to operate a retraxit. We have the less hesitation in giving this construction to the statute because, in practice in this State it has generally, perhaps universally, been considered to be the intention of the parties, in agreeing to dismiss an action, to thereby put an end to the controversy.