State ex rel. Wilkes Ins. Agency v. Damron ( 1920 )

WILLIAMS, PRESIDENT :

Petitioner seeks to prohibit respondent, the judge of the circuit court of Wyoming County, from further proceeding in an action brought in said court by the Wyoming Baking Co. against the petitioner on an alleged oral fire insurance contract. The writ is sought on the alleged ground of want of jurisdiction and excess of. legitimate powers, which consisted in reinstating the plaintiff’s cause of action immediately after it had voluntarily suffered a nonsuit, without requiring it to show any cause for such reinstatement. It appears from the petition and respondent’s answer that, after the plaintiff had introduced its evidence and announced that it had closed its case, defendant’s counsel moved the court to direct a verdict for the defendant on the ground of a fatal variance between the declaration and proof. The court having signified its intention to sustain the motion, plaintiff’s counsel asked to have the case reopened and that it be allowed to introduce additional evidence to clear up the variance, which permission the court refused to grant after the case had been closed. Thereupon plaintiff suffered a voluntary non-suit, and immediately thereafter moved the court to set aside the judgment of nonsuit and reinstate the ease on the.docket, which motion was granted, over the objection of defendant, and it excepted. Quoting from respondent’s answer, “the court, in the exercise of its due discretion, believed that it would be fair and promote justice to give the plaintiff an opportunity upon, another trial to correct said variance by proper evidence,' and that therefore respondent was of the opinion that the non-suit should be set aside and the case re-instated upon the condition that plaintiff pay the cost as set put in the order of the court entered therein.”

Petitioner’s counsel insist that the court exceeded its legitimate'■powers, that section 11, ch. 127, has no application in such a case, and that there was no cause shown by plaintiff in support oí its motion. A nonsuit is no bar to the cause of action and'the matter of setting it aside and reinstating the case is a matter within the sound discretion of the trial court. But counsel insist that it was necessary for plaintiff to show good cause therefor, and that it did not do so. Thfe reinstatement was ordered immediately after the court had heard plaintiff’s witnesses, refused its .request to be allowed to Introduce further evidence after it had closed its case, and all these matters were fresh in the mind of the court. Upon reflection the court may have concluded that, in the, interest- of justice, it should have allowed plaintiff to introduce its evidence to correct the variance, and in order to correct, as far as possible, his ruling in respect thereto, prompted by a desire to do justice to the parties, as his answer states, he acted upon the knowledge which he had already obtained from the testimony of witnesses in' the trial. He had a right to act upon bis knowledge thus obtained, and it does not appear that any further proof was necessary as a foundation for his ruling. We can not see that there'was any lack of-jurisdiction or abuse of judicial power. Higgs v. Cunningham, 71 W. Va. 674. That case is authority for the proposition that the trial court is vested with a sound discretion in the matter of reinstating causes which have been dismissed for failure to prosecute. It was reviewed on writ of error and the record showed that he was present by counsel and suffered a dismissal for failure to reply to a plea in abatement. Ten days later, at the same term, he appeared and moved to set aside the judgment and to be allowed to plead. The court overruled his motion on the ground that he had had ample time and opportunity to plead and shpwed no cause for his failure to do so, in other words that he had shown no cause. This court held that although section 11, ch. 127, Code, applied, it did not entitle the applicant to have the dismissal set aside as a matter of right, but the court could exercise its judicial discretion to grant or •refuse the motion, as might seem to it just and proper.

Plaintiff had a right to suffer a nonsuit at any time before the jury’retired, section 11, ch. 131, Code, and the court, dur-lug the term, having complete control over its judgments, 8 Ency. Dig. Va. and W. Va. 511, had the inherent power to set it aside, and in doing so could consider the facts disclosed on the trial, of which he was already advised, in determining whether or not sufficient cause therefor existed. When the plaintiff is required to pay the costs, as in this case, and the defendant suffers no hardship, it would seem to be in furtherance of justice for the court to set aside a judgment of nonsuit.

Writ refused.