Cybur Lumber Co. v. Erkhart
| Decision Date | 28 January 1918 |
| Docket Number | 3172. |
| Citation | 247 F. 284 |
| Parties | CYBUR LUMBER CO. v. ERKHART. |
| Court | U.S. Court of Appeals — Fifth Circuit |
W. J Gex, of Bay St. Louis, Miss., and J. C. Henriques, of New Orleans, La. (Gex & Waller and J. C. Henriques, all of Bay St. Louis, Miss., on the brief), for plaintiff in error.
J. H Mize, of Gulfport, Miss. (O. F. Moss, of Lucedale, Miss., and Mize & Mize, of Gulfport, Miss., on the brief), for defendant in error.
Before WALKER and BATTS, Circuit Judges, and EVANS, District Judge.
Corbet Erkhart, by next friend, sued the Cybur Lumber Company in tort, and recovered a judgment. The defendant prosecuted a writ of error to this court and the judgment was reversed the court holding that a verdict for the defendant should have been directed upon the evidence in the record, and the cause was remanded to be proceeded with in conformity with the opinion rendered by this court, 238 F. 751, 151 C.C.A. 601. Upon the remand of the case the plaintiff took a voluntary nonsuit, over objection. Subsequently the defendant moved for a judgment, which motion was overruled. It then moved to set aside the order granting the plaintiff a nonsuit, which motion was also denied. Another motion was made to redocket the case and to set the same for a hearing, and this motion was also denied.
1. A plaintiff cannot except to his own motion for a voluntary nonsuit, because, if it was error to grant it, he invited the error. But when he moves for a voluntary nonsuit, and a judgment of nonsuit is entered over the protest of the defendant, the judgment is a final one and reviewable at the instance of the defendant, though not res judicata of the merits of the controversy. Connecticut Fire Ins. Co. v. Manning, 177 F. 893, 101 C.C.A. 107.
2. It is a statute of the state of Mississippi that:
'Every plaintiff desiring to suffer a nonsuit on trial shall be barred therefrom unless he do so before the jury retire to consider of its verdict. ' Miss. Code of 1906, Sec. 802.
Under this statute a plaintiff, at any time before the jury had retired to consider their verdict, had a right to take a nonsuit. When the verdict was set aside by the court, with direction that on the next trial, if the evidence was the same, a verdict for the defendant should be directed, the whole case was reopened, and relatively to the second trial the case was in the same situation it was when it was ripe for trial in the first instance. The direction of the court was only intended to operate on evidence adduced on the second trial, and had no effect on the plaintiff's right to discontinue his case by suffering a voluntary nonsuit.
The general rule is that a plaintiff may discontinue his action as a matter of course before the hearing. There are exceptions to the general rule, as where the pleadings of the defendant entitle him to cross-relief, or to a decree against the plaintiff, or where his counterclaim would be barred by the statute of limitations if the plaintiff was allowed to dismiss his action. C. & A.R.R. Co. v. Union Roller Mills Co., 109 U.S. 702, 713, 3 Sup.Ct. 594, 27 L.Ed. 1081.
The case at bar is...
To continue reading
Request your trial
-
Parr v. United States, 15612.
...this case was a final and appealable order. Instead he cites cases dealing with non suits entered in civil cases such as Cybur Lumber Co. v. Erkhart, 5 Cir., 247 F. 284; Massachusetts Fire & Marine Ins. Co. v. Schmick, 8 Cir., 58 F.2d 130; Cf. Marks v. Leo Feist, Inc., 2 Cir., 8 F.2d 460; R......
-
Parr v. United States Parr v. Rice Parr v. Rice Parr v. Allred 202
...Ins. Co. v. Schmick, 8 Cir., 58 F.2d 130; Iowa-Nebraska L. & P. Co. v. Daniels, 8 Cir., 63 F.2d 322. In the fourth case, Cybur Lumber Co. v. Erkhart, 5 Cir., 247 F. 284, the plaintiff took a nonsuit only after a previous verdict in his favor had been reversed on appeal and the case had been......
-
Prudential Ins. Co. of America v. Stack
...658; Greenville Banking & Trust Co. v. Selcow (C. C. A.) 25 F.(2d) 78; McCabe v. Southern Ry. Co. (C. C.) 107 F. 213; Cybur Lumber Co. v. Erkhart (C. C. A.) 247 F. 284; El Paso & Southwestern Co. v. Riddle (D. C.) 287 F. 173; Worthington v. McGough (C. C. A.) 192 F. 512; Hines v. Martin (C.......
-
El Paso & Southwestern Co. v. Riddle
... ... Barrett v. Virginia Ry. Co., 250 U.S. 473, 39 ... Sup.Ct. 540, 63 L.Ed. 1092; Cybur Lumber Co. v ... Erkhart, 247 F. 284, 159 C.C.A. 378; McCabe v ... Southern Ry. Co. (C.C.) 107 ... ...