James v. Leport

• Decision Date: 30 September 1885
• Citation: 8 P. 47,19 Nev. 174
• Parties: JAMES v. LEPORT.
• Court: Nevada Supreme Court

8 P. 47

19 Nev. 174

JAMES v. LEPORT.

Supreme Court of Nevada

September 30, 1885

Appeal from a judgment of the Second judicial district court, Ormsby county, entered in favor of defendant.

R. M Clarke, for appellant.

A. C Ellis, for respondent.

BELKNAP C.J.

The last amended complaint, filed on the twenty-third day of November, 1882, states a cause of action for breach of covenant in a warranty deed, made jointly by defendant and Richard Kirman. Kirman was not a party to the action at the time the pleading was filed, and, as he had been made a defendant without leave of court, the complaint was stricken out upon motion. Afterwards it was amended, by stipulation by striking Kirman's name therefrom as a defendant, and an order of court asked making him a party. The motion was overruled. Thereafter defendant demurred to the complaint upon the ground of non-joinder of parties defendant, it appearing from the complaint that Kirman was a necessary party defendant. The demurrer was sustained. Plaintiff failed to amend his complaint, and judgment was entered against him.

The complaint was obnoxious to the demurrer. Plaintiff had however, endeavored to cure the defect by asking for an order making Kirman a defendant. The refusal of the court to make the order is sought to be sustained upon the ground that, at an early stage of the case, Kirman was, with Leport, a defendant to the action, and upon motion of plaintiff was dismissed. It is claimed that the dismissal operated as a retraxit as to Kirman, and that the judgment resulting therefrom is a bar to further proceedings upon the cause of action stated in the complaint. Section 151 of the practice act (Comp. Laws, 1212) provides, among other things, as follows: "An action may be dismissed, or a judgment of nonsuit entered, in the following cases: First, by the plaintiff himself, at any time before trial, upon the payment of costs, if a counter-claim has not been made. ***" Here follow four other subdivisions relating to judgments of nonsuit and dismissal, not necessary to be particularly noticed, because the case in hand does not fall within their conditions, and the section concludes as follows: "In every other case the judgment shall be rendered upon the merits." The judgment ordered falls within the provisions of the first subdivision of the above section. It was rendered upon motion of the plaintiff, and, as said by counsel for respondent, "as matter of law there followed a judgment in favor of Kirman in this...