Earl Carpenter & Sons v. New York, N.H. & H.R.r. Co.
| Decision Date | 01 September 1903 |
| Citation | 184 Mass. 98,68 N.E. 28 |
| Parties | EARL CARPENTER & SONS v. NEW YORK, N.H. & H. R. R. CO. GORHAM MFG. CO. v. SAME. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Robert F. Herrick and Alfred B. White, for plaintiffs.
Choate & Hall, for defendant.
It has always been a recognized principle of the English law, on the equity as well as on the common-law side of the court, that a plaintiff is not bound to prosecute a suit or action to a finish because he has begun it; but, on the contrary, he is at liberty to abandon it without losing the right of action on which it is founded, and he can enforce that right subsequently on paying the costs of the former proceeding. In this respect a plaintiff is more fortunate than a defendant who has a day in court to interpose his defense if he would not have final judgment given against him. What is not so clear is how far the plaintiffs' proceeding (whether it be a suit in equity or an action on the common-law side of the court) must have gone for it to have reached the stage where this right of abandonment is lost.
In England the plaintiff originally had a right to abandon an action at law and become nonsuit at any time before verdict if not before judgment. Derick v. Taylor, 171 Mass 444, 445, 50 N.E. 1038. That it was before verdict, and not before judgment, is laid down in Outhwaite v. Hudson, 7 Ex. 380, 381; 2 Tidd's Practice (3d Am. Ed.) 867. This rule was adopted here by an ordinance of the Colony in 1641 (Anc. Ch. 46); and in Locke v. Wood, 16 Mass. 317, it was contended by Webster and Shaw in 1820 that that was the rule of practice of the commonwealth, and that the plaintiff had a right to become nonsuit at any time before judgment. But the court 'were of opinion that there was no such right, and that, after a cause is opened to the jury and begun to be proceeded in before them, the parties are entitled to a verdict, unless the court should, in its discretion, allow a nonsuit or discontinuance.' And since then it has been held or said to be the rule that a plaintiff can become nonsuit as of right at any time before the trial has begun, but not afterwards. Means v. Welles, 12 Metc. 356, 361; City of Lowell v. Merrimack Mfg. Co., 11 Gray, 382; Shaw v. Boland, 15 Gray, 571; Inhabitants of Truro v. Atkins, 122 Mass. 418; Burbank v. Woodward, 124 Mass. 357; Kempton v. Burgess, 136 Mass. 192; Derick v. Taylor 171 Mass. 444, 50 N.E. 1038; City of Worcester v. Lakeside Mfg. Co., 174 Mass. 299, 54 N.E. 833. See, also, the previous case of Haskell v. Whitney, 12 Mass. 47.
The reason for denying in this commonwealth the rule of the English common law was the injustice done to the defendant, who was subjected to being harassed a second time on one and the same cause of action on receiving costs, which in this commonwealth are nominal. In that respect the burden of being subject to a second action is much greater here than in England, where costs are substantial. But the common-law rule has now been abolished in England. By Order 26 of the Rules of the Supreme Court, 1883, adopted under the Judicature Act, it is provided that 'the plaintiff may at any time before receipt of the defendant's defence or after receipt thereof, before taking any other proceeding in the action (save any interlocutory application) by notice in writing' discontinue the action. Wilson's Practice of the Supreme Court of Judicature (7th Ed.) 234.
The Massachusetts rule as to when a plaintiff could become nonsuit in a common-law action was established when substantially, if not absolutely, all such cases were tried to a jury. No question could arise as to what the rule was when applied to cases tried by the court, as so many cases are now tried since St. 1874, p. 163, c. 248, § 1; St. 1875, p. 834, c. 212, § 1; St. 1894, p. 380, c. 357, now Rev. Laws, c. 173, § 56--directing all cases to be tried by the court unless a trial by jury is claimed by one of the parties. Until the case is opened, the right to become nonsuit exists.
A question did arise as to the application of the rule in case of a preliminary trial before commissioners in case of a petition to recover compensation for property taken under the right of eminent domain. It was held that when the hearing before the commissioners was begun the right to become nonsuit was lost. City of Worcester v. Lakeside Mfg. Co., 174 Mass. 299, 54 N.E. 833.
The case at bar presents the question whether the right is lost when a hearing before an auditor has been finished, but before the auditor's report is filed. The cases relied on at the bar are not decisive of the point. It was held on the one hand, in Haskell v. Whitney, 12 Mass. 47, that after an action has been sent to arbitrators, under an agreement of submission voluntarily entered into, the plaintiff cannot become nonsuit even before a hearing before the arbitrators has begun. But that is a decision that when the action has by agreement of the parties been sent to arbitrators it ceases to be an action at law and becomes a submission to arbitration, and a party to a submission has no right to become nonsuit. On the other hand, it was held in Stone v. Sargent, 129 Mass. 503, that a case would be removed to a court of the United States, on the ground of prejudice, after an auditor's report had been filed. But the statute under which the removal in that case was allowed provided that the suit might be removed 'before the final hearing or trial of such suit.' See Act March 2, 1867, c 196, 14 Stat. 558. As re-enacted in rev. St. U.S.C. 639, cl. 3, it provides that the case may be removed 'before the trial or final hearing of the suit.' It is settled that the trial referred to is the final trial. Hess v. Reynolds, 113 U.S. 73, 5 S.Ct. 377, 28 L.Ed. 927; Baltimore & Ohio Railroad v. Bates, 119 U.S. 464, 7 S.Ct. 285, 30 L.Ed. 436. This was the law in 1879, when the petition for removal in Stone v. Sargent...
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