Hunt v. Mendenhall

• Decision Date: 30 June 1870
• Citation: 64 N.C. 502
• Court: North Carolina Supreme Court
• Parties: MCKESSON & HUNT v. MENDENHALL and others.

64 N.C. 502

MCKESSON & HUNT

v.MENDENHALL and others.

Supreme Court of North Carolina.

June Term, 1870.

*1 In defence to an action upon a note, the defendants, by way of counterclaim, alleged that it was given to the plaintiffs for rent of a tract of land, and that other parties, claiming such land by title paramount to that of the plaintiffs, had sued one of the defendants, seeking damages for its occupation during the time for which the note was given; and thereupon, by order of court, the owners were made parties plaintiff to the suit; the original plaintiffs th??cn elected to be non-suited: Held, upon an appeal by the interveners from this judgment of non-suit:

1. That they had a right to take a non-suit;

2. That although non-suited, the action would go on for the interveners, and the persons non-suited would be bound by the result of the suit, as privies thereto.

A plaintiff may elect to be non-suited in every case where no judgment, other than for costs, can be recovered against him by the defendant, and when such judgment may be recovered, he cannot.

The defendants had a right to ask for a bond for costs from the interveners, as the parties non-suited ceased to be liable, except partially.

MOTION for a non-suit, heard by Mitchell, J., at Spring Term 1870, of BURKE Court.

The principal facts are reported in S. C. 64 N.C. 286.

Since the last term of this Court, in accordance with an intimation in its Opinion, as heretofore reported, the persons claiming to own the land (the heirs of McDowell,) were allowed by his Honor Judge Mitchell, upon affidavit filed, to become parties plaintiff, and file a complaint against all the original parties, and thereupon the former plaintiffs moved that they be permitted to take a non-suit. This was resisted by the McDowells, but was allowed by his Honor.

The McDowells appealed.

C. M. Busbee, for the appellants .

Folk, contra .

RODMAN, J.

*2 Under the opinion given in this case, (64 N.C. 286,) the infant heirs of McDowell by their guardian, were permitted at Spring Term 1870, of Burke Superior Court, to intervene, and become parties plaintiff. Thereupon the original plaintiffs elected to be non-suited, which was allowed, and from this the McDowells appealed.

The single question presented, is, the right of the plaintiffs to take a non-suit. We think they have it.

In 1 Tidd, Pr. 458, it is said that the judgment of non pros. or non-suit, (the two terms meaning the same thing, but the former being proper in actions by bill, and the latter in actions by original writ,) is founded on the statute 13 Car. II, which enacts that unless the plaintiff shall file his declaration within a certain time, a judgment of non-suit may be entered against him. Section 78 of our Code of Civil Procedure, contains a similar provision. It was also formerly usual before the jury gave their verdict, to call, or demand the plaintiff, in order to answer the amercement to which, by the old law, he was liable in case he failed in his suit, and it is now usual to call him whenever he is unable to make out his case, &c.: 2 Tidd, Pr. 867. The failure of the plaintiff to appear when called, is regarded as a renunciation of his action. It is sometimes said that a judgment of non-suit can only be at the instance of the defendant; but the cases cited for that only prove that the Court will not give it ex mero motu, but only at the instance of one of the parties; and the proposition can only be maintained to the extent that the Court will not allow a plaintiff to become non-suit to the prejudice of the defendant, and in a case in which, although nominally a plaintiff, he is substantially a defendant. As the plaintiff possessed the power of becoming non-suit when called before verdict, it became a general practice to allow him to do so at any time before verdict, when he desired from any cause to abandon his action. So long as he is merely a plaintiff, the Court has no means by which he can be compelled to appear and prosecute his suit against his will, and no injury can result from allowing him to abandon it. When, however, by the pleadings, he ceases to be merely an actor, and becomes also a defendant, as, for example, if a defendant pleads a set-off exceeding the admitted demand of the plaintiff, and demands judgment for the excess, the right ceases. For this reason it was at one time doubted whether a plaintiff could become non-suit after a plea of tender, or payment of money into Court. But it is now held that he can: Tidd, Pr. 868. The principle would seem to be, that a plaintiff may elect to be non-suited in every case where no judgment other than for costs, can be recovered against him by the defendant, and when such judgment may be recovered, he cannot.

Can the interveners, or the defendants, in this case be injured by the plaintiffs' abandoning their action?

The action is on a note, and the defendants allege that the consideration of it was the demise of certain land to them by the plaintiffs, and that the heirs of McDowell, claiming by paramount title, have sued them for the use and occupation of the land during the term for which it was demised by the plaintiffs.

*3 For the reasons stated in 2 Story Eq. Jur. s. 812, the claim of the defendants for the intervention of the McDowell heirs, cannot be considered as strictly in the nature of a bill of interpleader. The practice, however, must, from the nature of the case, be very much as if it was. The right of the defendants to have the intervention stands on C. C. P. ss. 60 and 61, which declare in substance that all persons may be made parties whose presence is necessary for a complete determination of the matters in controversy.

The demand for intervention must be regarded as in the nature of a bill quia timet. The argument...