Harrison v. Clemen's
| Decision Date | 08 June 1911 |
| Citation | 71 S.E. 538,112 Va. 371 |
| Parties | HARRISON et al. v. CLEMEN'S, Road Oom'r, et al. |
| Court | Virginia Supreme Court |
The right to take a nonsuit, recognized by Code 1904, § 3387, providing that the right to a nonsuit must be exercised before the jury retires from the bar, exists until the case is submitted for decision to the jury, or to the court when sitting without a jury; so that a relator in mandamus, who before the conclusion of the argument before the court trying the case asks leave to take a nonsuit, is entitled thereto as a matter of right, in the absence of rights of defendant which would be prejudiced by a dismissal of the action.
[Ed. Note.—For other cases, see Mandamus, Cent. Dig. § 375; Dec. Dig. § 169.*]
Where the trial court erroneously denied a nonsuit and dismissed the action, the Supreme Court of Appeals on writ of error will l'everse the judgment of dismissal, and enter judgment permitting a nonsuit, with costs on the writ of error.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4573-4581; Dec. Dig. § 1175.*]
Error to Circuit Court, Loudoun County.
Mandamus by Henry Harrison and others against William H. Clemens, Commissioner of Roads in Leesburg District, in Loudoun County, and another. There was a judgment dismissing the petition, and adjudging that relators pay costs, and they bring error. Reversed.
J: W. Foster, for plaintiffs in error.
E. E. Garrett, for defendants in error.
CARDWELL, J. Henry Harrison, Anne L. Harrison, and John F. Lee, at the October term of the circuit court of Loudoun county, filed their petition praying a peremptory writ of mandamus, directed to Wm. H. Clemens, commissioner of roads for Leesburg district, in Loudoun county, commanding and compelling him to open a certain road described in said petition, and which the relators claim is a public road. Clemens, as road commissioner, answered the said petition at the December term of the circuit court, setting forth his readiness to perform any duty his office devolved upon him, or that the court might impose upon him in this proceeding; and at the same term of court Harry T. Harrison appeared by counsel, and on his motion was admitted as a party defendant to the cause, and leave given him to file his answer, in which he sets forth at length the reasons why the mandamus prayed by the relators should not be awarded.
It appears that there was some agreement of counsel as to the facts on which the court, without the intervention of a jury, was to hear and determine the issue involved, and during the argument of the cause, and while counsel for the relators was addressing the court, he was asked a question by the court, and there ensued a colloquy between counsel for the relators and counsel for the respondents, which developed that there was a misunderstanding as to the agreement upon which the case was being heard; counsel for the respondent Harry T. Harrison insisting that the statements in the latter's answer were to be treated as facts proved, while counsel for the relators insisted that the agreement was that the statements should only be taken for what they were worth when stated upon Harry T. Harrison's own knowledge and uncontradicted by the records or deeds, or conclusions drawn therefrom.
Upon these conditions arising, and before the conclusion of the argument of the case, and therefore before it was submitted for decision, counsel for the relators moved the court for leave to withdraw their petition and suffer a nonsuit. This motion was overruled by the court, to which ruling the relators duly excepted, and counsel was compelled to go on with the case. Upon the conclusion of the argument, the case was continued to the February term, 1910, at which term the court entered the order to which this writ of error was awarded, dismissing the petition of relators, and adjudging that they pay to Harry T. Harrison his costs expended in this litigation.
In the opinion of the learned judge, made a part of the judgment of the court, the facts as to the time and the circumstances in which the relators asked permission to dismiss their petition and suffer a nonsuit were set forth as above stated; but the court, sustaining the objection made by counsel for Harry T. Harrison, upon the ground that the motion to dismiss was too late and the case should be disposed of on its merits, refused to allow...
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BARRETT V. VIRGINIAN RY. CO.
...a plaintiff there had the absolute right to take a Page 250 U. S. 477 voluntary nonsuit at any time before verdict. Harrison v. Clemens, 112 Va. 371, 373. Chapter 27, Va.Acts 1912, directs: "That in no action tried before a jury shall the trial judge give to the jury a peremptory instructio......
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Pannill v. Roanoke Times Co.
...that a motion for leave to suffer a nonsuit after the case has been submitted to the judge for decision comes too late. Harrison v. Clemens, 112 Va. 371, 373, 71 S.E. 538. However, a motion for a directed verdict creates a different situation. (a) I have very little hesitation in holding th......
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Bethlehem Const. Co. v. People's Bank of Keyser
...sitting in lieu of a jury. Commonwealth Pipe & Supply Co. v. Nitro Products Corporation, 95 W.Va. 13, 120 S.E. 174; Harrison v. Clemens, 112 Va. 371, 71 S.E. 538; Charleston Trust Company v. Todd et al., 101 31, 131 S.E. 638; International Bank v. People's Bank of Keyser, cited. The evidenc......
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Bethlehem Const. Co v. People's Bank Of Keyser
...sitting in lieu of a jury. Commonwealth Pipe & Supply Co. v. Nitro Products Corporation, 95 W. Va. 13, 120 S. E. 174; Harrison v. Clemens, 112 Va. 371, 71 S. E. 538; Charleston Trust Company v. Todd et al., 101 W. Va. 31, 131 S. E. 638; International Bank v. People's Bank of Keyser, cited. ......