Hudson v. Strickland , 49 Miss. 591 ( 1873 )

Tarbell, J.,

delivered the opinion of the court:

This is an action of assumpsit, with the usual plea and notice of set-off. There was a trial and verdict for plaintiffs. A motion having been made for a new trial, it was taken under advisement.

At the term succeeding the trial, this motion was sustained, and, at the same time, the court, on its own motion, dismissed the plaintiffs’ action, against the protest of the plaintiffs, and without the request of the defendant. Hence, the case comes to this court.

Several errors are assigned, founded as well upon exceptions taken during the trial, as for granting a new trial and dismissing the plaintiffs’ complaint. The judgment is thus stated in the record: “It is considered by the court that said motion for a new trial be, and the same is sustained, and said verdict set aside, and a new trial granted; but it appearing to the satisfaction of the court, from the evidence, that the contract sued on was illegal and void, it is considered by the court that this suit be dismissed, and that defendant recover of the plaintiffs the costs of the suit expended.”

So much of this order as dismissed the suit was erroneous. The plaintiffs had a right, under- our practice, to have their case tried by the court and a jury. The judgment of non-suit has not obtained, at least to its full extent, in this State. This power is exercised in some of. the States, when, on the trial, in the opinion of the court, the testimony of the plain-' tiff, fails to make out his case, or for other cause, he is not. entitled to recover. And this judgment is pronounced by the court, with or without the request of the defendant in the action. It also follows, as the result of negligence on the part of the plaintiff. As, in his absence when the case is called, or, when he is unprepared to go on with the trial, and a continuance is refused. But in this State, this practice has only a very limited, if any, existence, except as regulated by, the Code, § § 641, 642, 666; first, it being desired by the plaintiff, on the trial, or in vacation, and, secondly, when the suit is brought for a less sum than the court can take cognizance of. Doubtless, also, a cause may be stricken from the docket for various causes, such as the neglect of the plaintiff' to prosecute his suit, anda continuance is refused.

But, compulsory non-suit, as exercised in the case at bar, is not allowable with us. Indeed, the courts hold that there is no such thing as compulsory non-suit in this Slate, where the plaintiff has taken proper issue on all the pleas. 3 How., 332; 12 S. & M., 550. The theory of our practice is, that the plaintiff may demand the judgment of the court and jury upon his case. And, that the plaintiff has a right to the verdict of the jury, under the instructions of the court, upon the issues and testimony in the cause. When a non-suit may be entered by the court for want of a replication, see 5 S. & M., 368; 10 ib., 321.

•In the case at bar, though objecting and excepting to the order granting a new trial, the plaintiffs were ready and willing to proceed with the cause. No laches are imputed to them in this respect. Under such circumstances, the action of the court in dismissing the suit, against the protest of the plaintiffs, was wholly unauthorized and without precedent in the jurisprudence of our State.

Manifestly, section 534 Code of 1871, has reference to a case taken under advisement on the merits, while on a motion for a new trial, as in the case at bar, section 648 prescribes the practice.

So much of the judgment in this case as dismisses the suit, is reversed, the cause is remanded, and will be reinstated upon the docket of the circuit.court, without prejudice.