Boyce v. Snow

• Citation: 187 Ill. 181,58 N.E. 403
• Parties: BOYCE v. SNOW.
• Decision Date: 19 October 1900
• Court: Illinois Supreme Court

187 Ill. 181

58 N.E. 403

BOYCE

v.SNOW.

Supreme Court of Illinois.

Oct. 19, 1900.

Appeal from appellate court, First district.

Action by Taylor A. Snow against William D. Boyce to recover for personal injuries. From a judgment of the appellate court (88 Ill. App. 402) affirming a judgment for plaintiff, defendant appeals. Affirmed.

O. W. Dynes, for appellant.

Edward B. Burling, for appellee.

PER CURIAM.

This is an appeal from a judgment of the appellate court affirming a judgment obtained by appellee against appellant in the superior court of Cook county. In the decision of the case the appellate court filed with its judgment the following opinion by Mr. Justice ADAMS:

‘Appellee (plaintiff in the trial court) sued appellant (defendant in that court), in case, for negligence resulting in injury to the plaintiff, and recovered judgment for the sum of $2,000, from which judgment this appeal is. The suit was commenced January 18, 1898, and the accident which occasioned the injury occurred November 20, 1894. The defendant pleaded the general issue and the statute or limitations, which limits the bringing of suit in such cases to two years from the time when the cause of action accrued. To the plea of the statute the plaintiff replied as follows: ‘And the plaintiff, as to the plea of the defendant by him secondly above pleaded, says that the (the plaintiff), by reason of anything in that plea alleged, ought not to be barred from having his aforesaid action, because he says that the causes of action in his said declaration set up, for which he brought suit, accrued to the plaintiff on the 28th of November, 1894, and the plaintiff says that within two years thereafter, to wit, on the 9th day of March in the year 1896, he (the plaintiff) began suit against the defendant in this suit, and the said suit so begun was general No. 172,968, in the superior court of Cook county, Illinois, and the said suit No. 172,968 was brought for the same causes of action for which this suit is brought; and the plaintiff says that thereafter, to wit, on the 8th day of December, A. D. 1897, a judgment of nonsuit was rendered by the said superior court against him (the plaintiff) in the said suit No. 172,968, in the words and figures following: ‘Taylor A. Snow v. National Electric Construction Company, University Club, and William D. Boyce. Case. This day come the parties hereto, by their attorneys, respectively, and the jury impaneled herein as aforesaid also come, and thereupon the plaintiff declines to proceed with the trial of said cause, and the court orders a nonsuit in this cause. Therefore it is considered by the court that the defendants, National Electric Construction Company, University Club, and William D. Boyce, do have and recover of and from the plaintiff their costs and charges in this behalf expended, and have execution therefor.’ And the plaintiff says that he was in the said suit No. 172,968 thereby nonsuited, and within one year thereafter, to wit, on the 18th day of January, 1898, he (the plaintiff) began his above-entitled suit against this defendant, and the plaintiff says that this his said suit as above entitled is brought for the same causes of action as said suit No. 172,968, wherein the said plaintiff was nonsuited as aforesaid; and this the plaintiff is ready to verify by the record in said suit No. 172,968. Wherefore he prays judgment and his damages, etc., to be adjudged to him,' etc. The defendant demurred to this replication, and the demurrer was overruled by the court. The legal question presented is whether the nonsuit mentioned in the replication was voluntary on the part of the plaintiff, or involuntary. If the former, the replication is bad; if the latter, it is good.

‘The statute of limitations contains the following provision: ‘If the plaintiff be nonsuited, then if the time limited for bringing such action shall have expired duringthe pendency of such suit, the said plaintiff, his or her heirs, executors or administrators, as the case shall require, may commence a new action within one year after such judgment reversed or given against the plaintiff, and not after.’ 2 Starr & C. Ann. St. p. 2642, par. 25. This provision applies solely to involuntary nonsuits, such as are known to the common law, and not at all to voluntary nonsuits, such as are permitted by section 49 of the practice act. Holmes v. Railroad Co., 94 Ill. 439;Gibbs v. Elevator Co., 180 Ill. 191, 54 N. E. 200. In the former case the court defined and distinguished between voluntary and involuntary nonsuits, saying: ‘A voluntary nonsuit is said to be an abandonment of a cause by a plaintiff, and an agreement that a judgment for costs be entered against him; but an involuntary nonsuit is where a plaintiff, on being called when the case is before the court for trial, neglects to appear, or when he has given no evidence upon which the jury could find a verdict.’ The court cite Jacobs' Law Dictionary, in which it is said, ‘A nonsuit can only be at the instance of the defendant,’ etc., which language refers to involuntary nonsuits; and after citing other authorities the court say: ‘Thus we see by the common-law practice their was no nonsuit, except on the motion of the defendant.’ See, also, 2 Tidd, Prac. 867, 868, to the same effect as Jac. Law Dict., cited supra. In Elmore v. Grymes, 1 Pet. 469, 7 L. Ed. 224, the court (Marshall, C. J., delivering the opinion) say: ‘The court has had this case under consideration, and is of opinion that the circuit court had no authority to order a peremptory nonsuit against the will of the plaintiff. He has a right, by law, to a trial by jury, and to have had the case submitted to them. He might agree to a nonsuit, but, if he did not so choose, the court could not compel him to submit to it.’ Neither the report of the case...