Chadwick, J.
(concurring) — The object of the statute of 1895 (Rem. & Bal. Code, § 340), was to make a demurrer to the evidence effective, and a judgment rendered thereon a judgment on the merits. There is much reason to sustain the statute. If the plaintiff has submitted all his facts and a court would be bound to set the verdict aside or to grant a new trial in case a verdict was rendered, it should have, and by this statute is given, the power of ordering a judgment, rather than going through the useless form of directing a verdict with its consequent detail and formality. The party is not without remedy. He may appeal as from any other judgment on the merits. The proceeding is not a novel one. At common law and under the statutes a demurrer to the complaint, if sustained, warrants a judgment on the merits. So a motion for a judgment upon an opening statement, or a judgment upon the pleadings, or a motion for judgment when all the evidence is in, is sustained as a judgment upon the merits.
*274In Montana and Nevada, statutes similar to our own are to be found. Our statute, § 408, Rem. &. Bal. Code, is the same as § 3246, Compiled Laws of Nevada, with the exception that it is there provided that, if the case is dismissed under the first two subdivisions of the statute, it will operate as a judgment of nonsuit; but in every other case, including the ground that the plaintiff has failed to make out his case, the judgment shall be on the merits. The statute of 1895 goes no further than this. Nor is a court robbed of its discretion, in my judgment, to grant a judgment of nonsuit strictly by the interposition of a motion for judgment. If it appears to the court that the failure of the plaintiff results, because of the mistaken jurisdiction of the court, or for mere lack of proof that may be supplied in a subsequent action, it is within the power of the court to direct a judgment, not upon the merits, but of nonsuit. The statute says that the court shall direct a judgment “in accordance with its decision.” On the other hand, if it appears that the plaintiff has made his whole case and that a different case could not be made upon a new trial, and in the judgment of the court the testimony is insufficient to sustain a verdict and judgment, the court should enter a judgment upon the merits, leaving the party to his appeal. This construction gives effect to both statutes, and insures their harmony. The Oregon case, as is said by Judge Morris, is in line with the general rule, but can have no application here because of our local statute. Reference to the case of Wilcox v. Parker, 120 U. S. 89, cited in the Oregon case, will show that, under the Nevada statute, a judgment such as the one we have before us was sustained as-a judgment on the merits, the court holding that the Nevada statute worked an exception to the general rule.
I concur in the foregoing opinion.