National Broadway Bank v. Lesley

• Decision Date: 13 February 1893
• Citation: 31 Fla. 56,12 So. 525
• Parties: NATIONAL BROADWAY BANK OF CITY OF NEW YORK v. LESLEY.
• Court: Florida Supreme Court

12 So. 525

31 Fla. 56

NATIONAL BROADWAY BANK OF CITY OF NEW YORK v. LESLEY.

Florida Supreme Court

February 13, 1893

Appeal from circuit Court, Hillsborough county; G. A. Hanson, Judge.

Action by the National Broadway Bank of City of New York against John T. Lesley on a promissory note. Plaintiff's motion for nonsuit was denied, and judgment on a verdict entered for defendant, and plaintiff appeals. Judgment reversed.

Syllabus by the Court

SYLLABUS

By the common law, as modified by the statute of 2 Hen. IV. c. 7, a plaintiff had the right to a voluntary nonsuit at any time before verdict rendered, but under section 103, p. 835 McClel. Dig., the plaintiff will be barred of such right unless he avail himself of it before the jury retire from the bar. If the plaintiff apply for nonsuit before the jury retire from the bar, it will be error to refuse it.

COUNSEL

Barron Phillips, for appellant.

Macfarlane & Pettingill, for appellee.

OPINION

MABRY J.

The appellant, the National Broadway Bank of the City of New York, a corporation, sued John T. Lesley on a promissory note executed by him to the Apalachicola Lumber Company, and alleged to have been indorsed before maturity by said company to appellant. Pleas were filed, upon which issues were joined, and the record shows a regular trial thereon before a jury, resulting in a verdict and judgment for the defendant below.

After the evidence on both sides had been closed, and the jury charged, but before they retired from the bar, the plaintiff below moved the court for a nonsuit, which was denied, and this ruling of the court was duly excepted to.

There are two kinds of nonsuits mentioned in legal proceedings; one is voluntary, and the other involuntary. The rule of practice arising in the case before us relates solely to a voluntary nonsuit, and nothing need be said about the practice in cases of involuntary nonsuits.

We remark, further, that the pleas in the present case involve no question of set-off, and the single point presented is has a plaintiff the right to a voluntary nonsuit, and, if so at what stage of the proceedings can he avail himself of that right?

At common law, before the statute of 2 Hen. IV. c. 7, a plaintiff had a right to be nonsuited at any stage of the proceedings he might prefer, and this right continued to the last moment of the trial, even till after verdict rendered, or, where the case was tried before the court without the intervention of a jury, until the judge had pronounced his decision. Outhwaite v. Hudson, 7 Exch. 380; Robinson v. Lawrence, Id. 123; Keat v. Barker, 5 Mod. 208; 7 Bac. Abr. D, p. 219. By the statute of 2 Hen. IV., supra, the right of the plaintiff to a nonsuit was taken away after verdict; but under this statute this right existed at any time before verdict rendered, and it seems, in some cases, even after verdict rendered. Bac. Abr., supra.

There are American decisions that do not follow the common-law rule as modified by the statute of 2 Hen. IV., but hold that before opening his case a plaintiff can insist on a nonsuit, as a matter of right; but after opening his case to the jury, and before verdict, his right to a nonsuit rests in the discretion of the court, and after verdict there can be no nonsuit. The courts of Massachusetts, New Hampshire, and Maine take this view, and in the case of Washburn v. Allen, 77 Me. 344, will be found a clear and full statement of the common-law rule and the modifications of it as held by these courts.

There is merit in the rule just stated, because, as the plaintiff may sue again on the same cause of action, after taking a nonsuit, he may exercise this right vexatiously. The courts that adopt it do not, however, deny the common-law rule as we have stated it above, but...