Molen v. Denning & Clark Livestock Co., 6246

• Decision Date: 27 September 1935
• Docket Number: 6246
• Court: Idaho Supreme Court
• Parties: DONALD F. MOLEN et al., Respondents, v. DENNING & CLARK LIVESTOCK COMPANY, a Corporation, et al., Appellants

50 P.2d 9

56 Idaho 57

DONALD F. MOLEN et al., Respondents, v. DENNING & CLARK LIVESTOCK COMPANY, a Corporation, et al., Appellants

No. 6246

Supreme Court of Idaho

September 27, 1935

DISMISSAL AND NONSUIT-DISMISSAL ON PLAINTIFF'S MOTION-TRIAL-APPEAL AND ERROR.

1. Order granting plaintiff's motion to dismiss plaintiff's cause of action, and judgment of dismissal entered thereon, held appealable (I. C. A., sec. 7-705).

2. "Trial" has not been had until evidence is all presented to jury, they have been instructed as to law, and case has been finally submitted to them for decision (I. C A., sec. 7-206, subds. 1, 7).

3. Judgment dismissing plaintiff's cause of action upon plaintiff's motion, made before completion of introduction of plaintiff's evidence, held proper although judgment contained no provision that such dismissal was made with prejudice, since such motion was made "before trial" within meaning of statute (I C. A., sec. 7-206, subds. 1, 7, sec. 7-705).

APPEAL from the District Court of the Ninth Judicial District, for Bonneville County. Hon. C. J. Taylor, Judge.

Appeal from judgment dismissing plaintiff's cause of action on plaintiff's motion. Affirmed.

Judgment affirmed with costs to respondents.

Hoyt Ray, for Appellants.

The court erred in entering judgment dismissing the case without additionally adjudging the dismissal was with prejudice to the institution of another action by plaintiffs, because said judgment was not on the merits of the case as required by sec. 7-706, I. C. A., or within terms of sec. 7-705, I. C. A. (Carver v. Ketchum, 53 Idaho 595, 26 P.2d 139; Merchants & Farmers State Bank v. Ronning, 57 N.D. 482, 222 N.W. 618; Miller v. Gooding Highway District, 54 Idaho 154, 30 P.2d 1034; Yusky v. Chief Consol. Min. Co., 65 Utah 269, 236 P. 452; secs. 7-706, 12-102, 12-104, I. C. A.)

A. A. Merrill, for Respondents.

Respondents had a right to dismiss their action at any time before trial, upon the payment of costs, providing a counterclaim had not been made or affirmative relief sought by a cross-complaint or answer of defendants. The term "before trial" means at any time before the case is finally submitted to the court or jury for final determination. The dismissal by the plaintiff, or on his motion, is not on the merits of the case, and is not a bar to a new action. (Sec. 7-705, I. C. A.); Spencer v. Ensign, 33 Idaho 577, 196 P. 668; Stover v. Stover, 7 Idaho 185, 61 P. 462; Newman v. District Court, 32 Idaho 607, 186 P. 922; Ramsey v. District Court, 33 Idaho 296, 193 P. 733; Sullivan v. Mabey, 45 Idaho 595, 264 P. 233; State v. District Court, 42 Wyo. 214, 292 P. 897.)

AILSHIE, J. Givens, C. J., and Budge, Morgan and Holden, JJ., concur.

OPINION

AILSHIE, J.

This case involves the construction of subd. 1 of sec. 7-705, I. C. A. While introducing the evidence for plaintiff and before completion thereof plaintiff's counsel moved the court to dismiss his action, defendant "objecting to said motion unless the plaintiff move to dismiss with prejudice to the institution of another action." The court granted the motion to dismiss "with costs" but said nothing about whether the dismissal should be with or without prejudice. Judgment of dismissal was thereupon entered and defendant has appealed and assigns as error, first, that the court had no authority to grant the motion for the alleged reason that it was not within the terms of sec. 7-705; and secondly, that the court erred in entering the judgment of dismissal without providing that the same should be "with prejudice" to any further action concerning the same subject matter.

A motion was made at the April term to dismiss this appeal on the grounds that the order and judgment was not appealable. We have concluded that the motion is not well taken and that the case should be decided upon the merits of the appeal.

The whole controversy here turns upon the meaning of the words "before trial" as contained in sec. 7-705, the material portion of which reads as follows:

"An action may be dismissed, or a judgment of nonsuit entered, in the following cases:

"1. By the plaintiff himself, at any time before trial, upon the payment of costs: provided, a counterclaim has not been made or affirmative relief sought by a cross-complaint or answer of defendant."

The concluding paragraph of the section contains this provision:

"The dismissal mentioned in the first two subdivisions is made by an entry in the clerk's register. Judgment may thereupon be entered accordingly. A dismissal under the fifth subdivision shall operate as a bar to another action upon the same cause of action."

The statute contains no specific definition of what constitutes a "trial." However, sec. 7-206, entitled, "Order of trial," directs the order of conducting a trial and subd. 1 provides that, "plaintiff, after stating the issue and his case, must produce the evidence on his part," and ends with subd. 7, which deals with the giving of instructions to the jury. It would seem, therefore, that the legislature meant that the trial would commence with the plaintiff stating the issue and that it would not end until after the instructions are given by the court.

The word "trial" in the general legal acceptation of that term seems to not only include the hearing of the facts but also their final determination. Webster's Internatl. Dictionary defines the term by saying:

"In a general sense trial includes all proceedings from the time when issue is joined, or more usually when the parties are called to try their case in court, to the time of its final determination."

Corpus Juris, under the title of "Beginning and Conclusion" of a trial (64 C. J. 32) says:

"A trial may be said to have commenced when all of the preliminary questions have been determined and the jury, or the court in the absence of a jury, enters on the examination of the facts for the purpose of determining the controversy. According to some authorities, the trial begins when any controverted question of law or fact is presented to the court for determination; but, according to other authorities, a trial does not commence until an issue of fact is joined. At any rate, there is no trial before an issue of law or fact is raised by the pleadings. The term 'trial' contemplates a final disposition of the controversy, either on the facts or on a question of law; and, when once commenced, a trial does not end until the examination or investigation is completed and a judgment can be entered."

See also, "Trial," Black's Law Dictionary (3d ed.).

It seems clear that a trial has not been had until the evidence is all presented to the jury and they have been instructed as to the law, and the case has been finally submitted to them for decision. As to whether it is concluded until the verdict is returned or the findings are filed, is not involved in this inquiry and we make no commitment thereon. It has been held in a criminal case that trial is not completed until the verdict has been returned. (Thomas v. Mills, 117 Ohio St. 114, 157 N.E. 488, 54 A. L. R. 1220.) It should be noted that the statute does not read "before the commencement of trial" but rather says, "before trial." Our statute was adopted from California and it seems to have been the uniform holding in that state that the words, "before trial," mean any time before the final submission of the case to the court or jury for final determination. In Westbay v. Gray, 116 Cal. 660, 48 P. 800, the Supreme Court of California considered the question and reviewed a number of the previous decisions of the court bearing on the California section which corresponds with our section 7-705 and said:

"Subdivision 1 of section 581 of the Code of Civil Procedure provides that an action may be dismissed, or a judgment of nonsuit entered '(1) by the plaintiff himself at any time before trial, upon payment of costs,' etc. In [Hancock] Ditch Co. v. Bradford, 13 Cal. 637, in construing a like expression in our former practice act, the court said, 'By "trial," here, is meant the determination or finding in the case.' In Brown v. Harter, 18 Cal. 76, it was held that plaintiff had not an absolute right to take a nonsuit after the case had been finally submitted and the jury had retired, but that he might do so at any time before such submission and retirement. In Heinlin v. Castro, 22 Cal. 100, it was held that after a cause held been tried and submitted to the court, and was held under advisement the plaintiff had no right to dismiss, and the court had no authority to dismiss. In the case at bar the action had been tried and submitted, but the order of submission had been set aside, and leave given to amend the pleadings. It stood, therefore, as though no submission had ever been had. Under these circumstances, the plaintiff had a right to apply for, and the court had a right to grant, the dismissal." The Court of Appeals for the Second District of California had the same question before it in Strupelle v. Strupelle, 59...