Ferguson v. Ingle

• Decision Date: 19 November 1900
• Citation: 38 Or. 43,62 P. 760
• Parties: FERGUSON et al. v. INGLE.
• Court: Oregon Supreme Court

62 P. 760

38 Or. 43

FERGUSON et al. v. INGLE.

Supreme Court of Oregon

November 19, 1900

Appeal from circuit court, Benton county; J.W. Hamilton, Judge.

Action by E.W. Ferguson and others against J.W. Ingle. Judgment for defendant, and plaintiffs appeal. Reversed.

This is an action for money. The defendant, after denying the material allegations of the complaint, set up a counterclaim and, a demurrer thereto having been sustained, the plaintiffs, by leave of the court, filed an amended complaint, and immediately moved for a judgment of nonsuit which being denied the defendant filed an amended answer. A reply having put in issue the new matter in the answer, a trial was had, resulting in a judgment for defendant, and plaintiffs appeal.

H.C Watson, for appellants.

W.S McFadden, for respondent.

MOORE J.

It is contended by plaintiffs' counsel that the court erred in refusing to grant the voluntary nonsuit requested by their clients; while defendant's counsel insist that, the motion therefor not having specified the ground upon which it was predicated, no error was committed in this respect. Considering these questions in inverse order, the rule is well settled that the motion of an adverse party for a nonsuit must specify the grounds therefor, and, unless it does so, an appellate court will not review the action of the trial court in denying the motion. 14 Enc.Pl. & Prac. 117, 136; Silva v. Holland, 74 Cal. 530, 16 P. 385; Flynn v. Dougherty, 91 Cal. 669, 27 P. 1080, 14 L.R.A. 230; Wright v. Insurance Co., 12 Mont. 474, 31 P. 87, 19 L.R.A. 211. The reason for this rule is found in the fact that an appellate court will consider only such questions as have been presented to the trial court at the proper time, and in an appropriate manner; and when it appears that the question sought to be reviewed was not thus submitted to such court the presumption that its decision thereon is correct ought to prevail. But, whatever reason may be adduced for the existence of this rule, the point insisted upon is without merit, for the motion in this case was not made by the adverse party. The statute provides, in effect, that the plaintiff, upon his own motion, may secure a judgment of nonsuit at any time before trial, unless a counterclaim has been pleaded as a defense. Hill's Ann.Laws Or. § 246. A voluntary nonsuit is, therefore, peremptory, and, whatever motive may have prompted a plaintiff to dismiss his suit or action, he is not required to state it; for if the motion be made before trial, and in the absence of a counterclaim pleaded as a defense, the trial court is without discretion in the matter, and must give the judgment requested.

It is maintained by defendant's counsel that the court, in allowing the plaintiffs' motion to amend their complaint was authorized to impose upon them such terms as were proper; and having, in the same order, permitted the defendant to file an amended answer, no error was committed in denying the motion for a judgment of nonsuit. The...