Gummer v. Trustees of Village of Omro
| Citation | 6 N.W. 885,50 Wis. 247 |
| Parties | GUMMER v. THE TRUSTEES OF THE VILLAGE OF OMRO |
| Decision Date | 12 October 1880 |
| Court | United States State Supreme Court of Wisconsin |
Argued September 22, 1880
APPEAL from the Circuit Court for Outagamie County.
Plaintiff appealed from an order. The case is stated in the opinion and the form of the judgment therein referred to is sufficiently stated in the second proposition of the syllabus, supra.
Order reversed with costs and cause remanded.
For the appellant there was a brief by Finch & Barber, and oral argument by Mr. Barber. They contended, 1. That at common law a nonsuit was entered if plaintiff neglected to bring on the issues to be tried, or if, his case being before the court for trial, he neglected to appear, or to produce evidence on which the jury could find a verdict; that in all these cases a nonsuit was involuntary; that the plaintiff, however, could in all cases bring about a nonsuit by failing to appear when the verdict was to be entered (since that could not be entered in his absence); that the courts, therefore afterwards gave him the right to take a nonsuit without the fact or fiction of his absence; and that whether the nonsuit was voluntary or involuntary, the entry was the same, and the judgment against him was no bar. 7 Bac. Ab., 22, 214 "Nonsuit;" Tidd's Pr., 917; Bouv. Dic "Nonsuit;" 3 Bl. Com., 376; Haskell v. Whitney, 12 Mass., 47; McNaughton's Ex'rs v. Moseley, 1 Hayw. (N. C.), 331. 2. That under the modern practice, also, there is no difference between a voluntary and involuntary nonsuit, in respect to either the form of the judgment or its legal effect. 2 Whitt Pr., 3d ed., 357; 3 Wait's Pr., 156. 3. That a nonsuit is not a bar. 7 Bac. Ab., 215-221; Big. on Estop., 123; Freeman on Judgm., § 260; 3 Wait's Pr., 163; Whitt., ubi supra; Homer v. Brown, 16 How., U.S., 354; Ensign v. Bartholomew, 1 Met., 274; Knox v. Waldoborough, 5 Greenl., 185; Inh. of Jay v. Inh. of Carthage, 48 Me., 353; Audubon v. Excelsior Ins. Co., 27 N. Y., 216; Coit v. Beard, 33 Barb., 357; Dexter v. Clark, 35 id., 271; Scott v. Elmendorf, 12 Johns., 317; Morgan v. Bliss, 2 Mass., 111; Bridge v. Sumner, 1 Pick., 371. The question seems to have been settled in this state. McFarlane v. Cushman, 21 Wis. 401; Wis. Riv. L. Co. v. Plumer, 49 id., 666. 4. That the former judgment here in question was one of nonsuit. 3 Wait's Pr., 163; Coit v. Beard, supra.
The cause was submitted for the respondent on the brief of Moses Hooper:
The former judgment was properly held to be a bar. Though it followed what was called a motion for a nonsuit, it was a judgment dismissing the complaint. It was more like the dismissal of a bill in equity for want of sufficient proofs, which has always been held to bar a subsequent action unless specified to be without prejudice (Story's Eq. Jur., § 1523; 1 Daniell's Ch. Pr., 659; Cochran v. Couper, 2 Del. Ch., 27), than like the judgment of nonsuit referred to in the older authorities. Of the older cases which state that a "judgment of nonsuit" is no bar to a subsequent action, most were decided under a practice which did not permit a nonsuit against an unwilling plaintiff. Baxter v. Payne, 1 Pin., 501; Pyne v. Van Bergen, id., 533; Elmore v. Grymes, 1 Pet., 469; Crane v. Morris, 6 id., 598; Mitchell v. Ins. Co., 6 Pick., 117; Cartwright v. Bate, 1 Allen, 514, 515; Wilkinson v. Scott, 17 Mass., 249, 257-8; Marshall v. Merritt, 97 id., 516, 517; Pratt v. Hull, 13 Johns., 334; Irving v. Taggart, 1 S. & R., 360; French v. Smith, 4 Vt., 363; Booe v. Davis, 5 Blackf., 115; Williams v. Port, 9 Ind., 551; Cahill v. Kalamazoo Ins. Co., 2 Douglass (Mich.), 124, 133; Hill v. Rucker, 14 Ark., 706; Winston v. Miller, 12 Sm. & Marsh., 550; N. R. R. Co. v. Button Co. , 24 Conn. 468; Poleman v. Johnson, 84 Ill., 269, based on statute of Illinois. Decisions of the character described have no application to this case. Here there was a decision by the court upon the merits, that the proofs which plaintiff produced did not entitle him to judgment. There was no failure of formal proofs, no technical omission. Plaintiff insisted that his proofs were sufficient, rested his case on them, and even appealed from a judgment declaring them insufficient. This brings the case within the maxims, Nemo debet bis vexari pro una et eadem causa, and Res judicata pro veritate accipitur. In case of voluntary nonsuit nothing is adjudicated, and defendant is not once vexed, because the complaint is withdrawn by leave of the court; but here it is otherwise. See Broom's Leg. Max., 329, 331; Kilheffer v. Herr, 17 S. & R., 319. Under modern practice the power of a judge to nonsuit or to dismiss the complaint for failure of proofs has been greatly extended. He may nonsuit, not only for the insufficiency of plaintiff's own evidence, but for the inadequacy of his proofs to stand against those of the defendant. Cutler v. Hurlbut, 29 Wis. 152, 165; Hoeflinger v. Stafford, 38 id. , 391; Davis v. Hardy, 6 B. & C., 225; Fort v. Collins, 21 Wend., 109; Jansen v. Acker, 23 id., 480; Rudd v. Davis, 3 Hill, 287; S. C., 7 id., 529; Lomer v. Meeker, 25 N. Y., 361-2; Cooper v. Waldron, 50 Me., 80, 81, 82; White v. Bradley, 66 id., 254, 256; Partlow v. Elliott, 1 Meigs, 547. In fact, nonsuit has taken the place of demurrer to evidence and to instruction to find for defendant. Pleasants v. Fant, 22 Wall., 116, 120-22; Improvement Co. v. Munson, 14 id., 448; Parks v. Ross, 11 How., 362, 373; Ryder v. Wombwell, L. R., 4 Ex., 33; Pawling v. U.S. 4 Cranch, 219, 221-2; Bank of U. S. v. Smith, 11 Wheat., 171, 179; Gray v. McNeal, 12 Ga., 424. It will not do to hold now that no judgment of nonsuit, or judgment dismissing the complaint for insufficiency of proofs, is a bar to a subsequent action for the same cause. In some cases a distinction has been taken between a nonsuit (so called) upon the merits, and a voluntary nonsuit or nonsuit on technical grounds, and those of the former class are in all such cases held a bar. Wis. Riv. L. Co. v. Plumer, 49 Wis. 666; Schmidt v. Zahensdorf, 30 Iowa, 498; Jay v. Almy, 1 Woodb. & M., 262; Greely v. Smith, id., 181; Greely v. Smith, 3 id., 236; Gillilan v. Spratt, 8 Abb. Pr., N. S., 13; 1 Clifford, 245, 432; 5 Bacon's Abr., 6th ed., p. 140; Gould v. Crawford, 2 Pa. St., 89. Other authorities hold that a dismissal of the complaint or counterclaim for want of proofs is a bar, whether the dismissal be called a nonsuit or not, when the decision is on the merits, with no saving clause in the judgment. Schmidt v. Zahensdorf, 30 Iowa, 498; Sullivan v. Brewster, 1 E. D. Smith, 681; Hunt v. Terril's Heirs, 7 J. J. Marsh., 67; Wis. Riv. L. Co. v. Plumer, 49 Wis. 666.
This is an appeal from an order of the circuit court overruling a demurrer to the second defense stated in the answer. This defense sets up a judgment of nonsuit in a former action between the same parties, and for the same cause of action, in bar of this suit. The statement in the answer of the proceedings in the former action, any further than that the nonsuit was granted by the court, on the trial without a jury, after the plaintiff had closed his evidence, on motion of the defendant, need not be recited, because it does not change the effect of the judgment. Nor does the peculiar and unusual form of the judgment, as entered by the clerk, upon sustaining the motion of the defendant for a nonsuit, change its effect. It is, in effect, a judgment of nonsuit and for costs, against the plaintiff, on the case made by him, on the motion of the defendant. On such a motion the court must necessarily consider and pass upon the legal effect of the evidence introduced by the plaintiff, and the formal entry of the judgment by the clerk, dismissing the complaint and for costs against the defendant, does not affect the question.
The only question, then, presented by this appeal is, whether that judgment is a bar to the present suit. It is not contended by the learned counsel of the respondent that a voluntary nonsuit bars another action, but only that an involuntary nonsuit, so granted on the motion of the defendant, has that effect. The practice of granting such a nonsuit is an old one even in England, where the evidence of the plaintiff is insufficient to entitle him to a verdict, and where a judgment for the plaintiff upon it would be arrested. Sadler v. Robins, 1 Campb., 256. And such a practice has been followed in this country in nearly all of the states. It is significant that no case in point has been found, upon a quite extended examination of the reports, in which it has been directly held that such a nonsuit is a bar. In some cases it has been held that the practice of granting such a nonsuit on motion of the defendant is analogous to a demurrer to the evidence, where judgment upon such a demurrer is not final as at common law, but where, after such a demurrer has been overruled, the defendant may, notwithstanding, proceed with his defense. Smyth v. Craig, 3 Watts & Serg., 18; Bevan v. Ins. Co., 9 Watts & Serg. 187; Levy v. Simmons, 42 Ga. 53. In these cases the demurrer to the evidence was treated as a motion for a nonsuit. If the overruling of such a demurrer is not conclusive upon the defendant, it would seem that sustaining it ought not to be conclusive upon the plaintiff to bar him of another suit.
But, in whatsoever manner or by whatsoever analogy this practice may have obtained, the effect of such a nonsuit seems to be precisely the same as that of a nonsuit asked, taken or submitted to by the plaintiff, or that of a voluntary nonsuit, so called; and it makes no difference whether the form of such a judgment be the dismissal of the suit or of the complaint. Bond v. McNider, 3 Ired. Law 440. In that case the entry was, "dismissed at defendant's cost." ...
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