Bryan v. Pinney

• Decision Date: 13 February 1889
• Docket Number: Civil 238
• Citation: 21 P. 332,3 Ariz. 34
• Parties: T. J. BRYAN, Plaintiff and Appellant, v. D. H. PINNEY, Defendant and Appellee
• Court: Arizona Supreme Court

21 P. 332

3 Ariz. 34

T. J. BRYAN, Plaintiff and Appellant, v. D. H. PINNEY, Defendant and Appellee

Civil No. 238

Supreme Court of Arizona

February 13, 1889

APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Maricopa. William W Porter, Judge.

Reversed.

Cameron H. King, Goodrich, Smith, Street & Goodrich, and E. J Edwards, for Appellant.

Baker &amp Campbell, for Appellee.

Porter, J. Barnes, J., concurring. Wright, C. J., dissenting.

OPINION

PORTER, J.

The only question necessary to be determined in this case is whether in this territory an involuntary nonsuit can be granted. By the late Compiled Laws (sec. 2586) a nonsuit was granted (1) "by the plaintiff himself at any time before trial, on the payment of costs; . . . (5) by the court upon motion of the defendant, when upon trial the plaintiff fails to prove a sufficient case for the jury." The Revised Statutes (sec. 764) provides: "At any time before the jury have retired the plaintiff may take a nonsuit, but he shall not thereby prejudice the right of an adverse party to be heard on his own claim for affirmative relief." The legislature, having acted on the same question, leaves out clause 5 of nonsuit of Compiled Laws. Can anything be plainer than a denial of an involuntary nonsuit, except wherein affirmative relief was asked by defendant? The mode is pointed out, and we cannot get around it. Had there been no legislation on the subject, we would be bound by the decisions of the supreme court of the United States, which has appellate jurisdiction over the courts of the territory. In Castle v. Bullard, 23 HOW 172, the court says: "Circuit courts have no power to grant a peremptory nonsuit against the will of the plaintiff. It was expressly so held by this court in Elmore v. Grymes, 1 Peters 469, and the same rule was also affirmed in D'Wolf v. Rabaud, 1 Peters 476. In the case last named the defendants at the trial, after the evidence for the plaintiff was closed, moved the court for a nonsuit, which was denied, and the defendant excepted, and sued out a writ of error; but this court held that the refusal to grant the motion constituted no ground for the reversal of the judgment; remarking, at the same time, that a nonsuit cannot be ordered in any case without the consent and acquiescence of the plaintiff." And in Crane v. Lessees of Morris, 6 Peters 598, on same question of nonsuit, say "that this point was no longer open for controversy." See, also, Silsby v. Foote, 14 HOW 218. It is well to say that on the trial in the court below, while objection was made that the nonsuit was improperly granted, the attention of the court was not directed to the existing statutes on the subject, nor were the decisions of the United States supreme court presented.

The judgment of the court allowing the nonsuit is reversed.

CONCUR BY: BARNES

BARNES, J.--I concur with Judge Porter. While the granting of an involuntary nonsuit may not always be such an error as should cause a reversal, yet in a case of doubt it should. Defendant has a right to such a judgment as shall bar him, unless plaintiff escape by a voluntary nonsuit. While there is a conflict of authority on this question, we prefer to follow the practice approved by the supreme court of the United States, which has appellate jurisdiction over the courts of territories, that involuntary nonsuits be not allowed. Elmore v. Grymes, 1 Peters 469; D'Wolf v. Rabaud, 1 Peters 476; Crane v. Lessee of Morris, 6 Peters 598; Castle v. Bullard, 23 HOW 172; Boucicault v. Fox, 5 Blatchf. 87, Fed. Cas. No. 1691; Silsby v. Foote, 14 HOW 218. This rule also prevails in England, and in many of the states. 2 Tidd's Practice, 869; Dewar v. Purday, 4 Nev. & M. 633; Newmarch v. Clay, 14 East 239; Watkins v. Towers, 2 Term. R. 275; Elworthy v. Bird, 13 Price 222; Dickey v. Johnson, 13 Ired. Law 450; Scruggs v. Brackin, 4 Yer. 528; Hunt v. Stewart, 7 Ala. 525; Martin v. Webb, 5 Ark. 72, 39 Am. Dec. 363; Hill v. Rucker, 14 Ark. 706; Insurance Co. v. Soulard, 8 Mo. 665; Wells v. Gaty, 8 Mo. 681; Case v. Hannahs, 2 Kan. 490; Williams v. Port, 9 Ind. 551; French v. Smith, 4 Vt. 363, 24 Am. Dec. 616; Cahill v. Kalamazoo Co., 2 Doug. 124, 43 Am. Dec. 457; Lyon v. Daniels, 14 Pa. 197; Railroad Co. v. Button Co., 24 Conn. 468; Davis v. Davis, 7 H. & J. 36; Amos v. Sinnott, 4 Scam. 440; Deshler v. Beers, 32 Ill. 368, 83 Am. Dec. 274. And the weight of authority seems to sustain this view.

DISSENT BY: WRIGHT

WRIGHT C. J., dissenting.--

I cannot concur in the views of my associates in this case. The court in its opinion only passes upon the question of involuntary nonsuit. In this dissenting opinion, however, I have deemed it appropriate to consider the other important questions in the case, viz., the propriety of the court's action below in allowing defendant to read the balance of the probate record of the administration of the estate of J. M Bryan, deceased, without going into the evidence in chief. It is to be observed in the outset that in neither of the three bills of exceptions preserved was there a single exception saved as to the rulings of the court upon the papers, deeds, etc., offered by plaintiff for the sole purpose, as expressed at the time, of deraigning title to a common source. This the plaintiff had the undoubted right to do, under chapter 1, section 3144, Revised Statutes, concerning the "Trial of the Rights of Property." Indeed, no objection seems to have been made by the defendants, and therefore no right of plaintiff under said paragraph was thus far infringed upon. Without objection or exception, plaintiff was allowed to prove a common source of title emanating from one Chenowth and wife; the first link in plaintiff's chain of title being the deed from Mrs. Vina Brown (formerly Bryan), widow and heir of J. M. Bryan, deceased, and the last link being the deed from said Chenowth and wife to said J. M. Bryan, deceased. Now, all there is of said section 3144 is that, after plaintiff has thus deraigned title to a common source, the papers, etc., by which the deraignment is made, are not evidence of title in the defendant, unless offered in evidence by him, in which event the plaintiff is not to be debarred the right to make any legal objections to the same. The defendants, however, offered no evidence of title, and therefore plaintiff's rights under the latter part of said paragraph were unaffected; so that the right of the plaintiff to offer the said papers for the purpose of the deraignment only was certainly not denied him. But plaintiff having in his amended complaint alleged the fact, and then proven it by the said Vina Brown, that said J. M. Bryan died intestate in August, 1883; that he had property, etc., and that she was his widow and sole surviving heir, it was a most natural and reasonable inquiry that seemed to suggest itself to the mind of the trial judge, what is the status of that estate? Has there been an administration? Were there any debts? If so, have they been paid? Has the administrator rendered his final account? Has there been a final decree of distribution? And has the administrator been finally discharged? We can well suppose that such queries most naturally suggested themselves, especially in view of paragraph 1463, section 1, chapter 26, Compiled Laws 1877, then in force. That paragraph reads: "When any person shall die seised of any lands, tenements, or hereditaments, or of any right thereto, or entitled to any interest therein, in fee-simple, or for the life of another, not having lawfully devised the same, they shall descend, subject to his debts," etc. These considerations became the more forcible, doubtless, when it was recalled that section 194, paragraph 1711, chapter 29, of said laws, required the administrator to take possession of all the real estate, as well as the personal, of the deceased. That paragraph further provides that, "for the purpose of bringing suits to quiet title, or for partition of such estate, the possession of the executors or administrators shall be deemed the possession of the heirs or devisees. Such possession by the heirs or devisees shall be subject, however, to the possession of the executor or administrator, for all other purposes." One of the most important of "the other purposes" is to pay the debts of the deceased. Well, after deraigning title to a common source, this difficulty occurred; and, to obviate it, plaintiff offered in evidence a portion only of the probate court record of this administration, viz., the order granting letters of administration, and that the administration had been closed, and the administrator discharged. Here the defendants seem to have interposed their first real objection; they insisting that, in justice to them, plaintiff should be required to produce the whole probate record of said administration. To this view the court yielded assent, and so ruled, to which ruling of the court the plaintiff excepted; and this brings up for consideration the first real question in this case. It must be borne in mind that, upon the refusal of plaintiff to introduce the whole record, the court permitted defendant to read the balance of it, without going into their own evidence. Was this error? We are clearly of the opinion that it was not. The rule is an old and well-established one that, where the plaintiff introduces a portion of a record, the defendant, on demand and for purposes of explanation, is entitled to have read all the remaining portions thereof that are pertinent, at least, immediately and before the intervention of other evidence, and vice versa, in order that the court can consider and properly construe the whole record. The reason of the rule is apparent. The portions not read may,...