Inhabitants of Truro v. Atkins

• Citation: 122 Mass. 418
• Parties: Inhabitants of Truro v. Jonah Atkins
• Decision Date: 27 March 1877
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

122 Mass. 418

Inhabitants of Truro v. Jonah Atkins

Supreme Court of Massachusetts

March 27, 1877

Barnstable. Writ of entry. Trial in the Superior Court at April term 1876, before Brigham, C. J., who, by consent of parties and before verdict, reported the case for the determination of this court upon the question whether the evidence reported was competent and sufficient to sustain the demandant's title.

At October term 1876, the demandant moved for leave to become nonsuit as of right, without notice to the tenant, and Gardner, J., granted the same as of course, and a nonsuit was entered. Afterwards at the same term, the tenant objected thereto, and moved that the nonsuit be stricken off, which motion the judge refused to grant, upon the ground that the demandant was entitled to become nonsuit as of right; and the tenant alleged exceptions.

Exceptions sustained, and nonsuit stricken off.

I. Knowles, Jr., for the tenant.

J. M. Day, for the demandant.

Gray C. J. Lord, J., absent.

OPINION

Gray C. J.

A plaintiff has the right to become nonsuit at any time before trial, but after the trial has been begun, he cannot become nonsuit, except by the leave and at the discretion of the court. Shaw v. Boland, 15 Gray 571. In the present case, the trial having been begun, and the question of law reserved at the trial being still undisposed of, the ruling by which the demandant was allowed to become nonsuit as of right and of course, against the objection of the tenant, and without any exercise of discretion on the part of the court, was erroneous.

In Lowell v. Merrimack Manuf. Co. 11 Gray 382, cited for the demandant, the case had been submitted to, and judgment rendered by, the court below upon an agreed statement of facts; the case had been brought to this court by appeal, which vacated that judgment; and the nonsuit was allowed by this court on motion, and before the opening of the case here.

Whether the Superior Court can allow a plaintiff to become nonsuit, after a question of law has been reserved on report for the opinion of this court, and before that question has been disposed of by this court, either by deciding the question, or by dismissing the report, is not presented by these exceptions, and we therefore express no opinion upon it.

Exceptions sustained, and nonsuit stricken off.