Northern P. Ry. Co. v. Spencer

• Citation: 56 Or. 250,108 P. 180
• Parties: NORTHERN PAC. RY. CO. v. SPENCER.
• Decision Date: 26 April 1910
• Court: Oregon Supreme Court

108 P. 180

56 Or. 250

NORTHERN PAC. RY. CO. v. SPENCER.

Supreme Court of Oregon

April 26, 1910

Appeal from Circuit Court, Multnomah County; Thomas O'Day Judge.

Action by the Northern Pacific Railway Company against E.W. Spencer doing business under the name of the Dalles Transportation Company. From a judgment for defendant, plaintiff appeals. Affirmed.

This is an action for the recovery of $660, alleged to be due plaintiff for the use by defendant of its wharf at the foot of Columbia street in Vancouver, Wash. Defendant answered with the usual denials, amounting to a denial of any liability therefor, and as an affirmative defense pleaded a counterclaim, alleging neglect by plaintiff properly to care for freight left by defendant on the plaintiff's wharf and demanding damages in the sum of $500 which counterclaim was thereafter, at defendant's request, stricken out and the answer amended, omitting same. The proceedings are fully set out in the record of the judgment entry contained in the bill of exceptions, which reads: "The above-entitled action having come on for trial on the 14th day of January 1908, before the court without a jury (a jury having been waived), thereupon the defendant amended his answer by striking therefrom, with the permission of the court first had and obtained, the counterclaim therein contained; and evidence having been introduced on behalf of the plaintiff, and at the close of such evidence the defendant having moved the court for a judgment of nonsuit upon the ground that the evidence submitted by the plaintiff did not sustain the allegations of the complaint, and this motion having been taken under advisement and ruling thereon reserved, and thereupon the defendant having offered evidence in support of the allegations of his answer, and thereupon the plaintiff, by its counsel, having partially argued the questions of fact and questions of law involved herein, and the defendant, by his counsel, having partially argued the questions of fact and questions of law involved herein, the plaintiff thereupon moved the court for a judgment of nonsuit under section 182 of the Bellinger & Cotton's Annotated Codes of Oregon, and the court having reserved its ruling on the defendant's motion for nonsuit, it is now ordered, adjudged, and decreed that the motion of the plaintiff for a judgment of nonsuit be and the same hereby is denied; and it is further ordered, adjudged, and decreed that this action be, and the same hereby is, dismissed, and that the defendant go hence without day, and that the defendant recover his costs and disbursements against the plaintiff in the sum of $47."

Carey & Kerr, A.L. Miller, and Harrison Allen, for appellant.

R.W. Montague and Coovert & Stapleton, for respondent.

KING, J. (after stating the facts as above).

This appeal presents a unique and probably an unprecedented situation. Defendant, by motion, demanded that the action be dismissed for insufficiency of proof. Before being passed upon, and after defendant had rested his case, but before final submission of the cause, plaintiff also filed a motion asking that the cause be dismissed, seeking thereby a voluntary nonsuit. The motion interposed by defendant came under subdivision 3, § 182, B. & C. Comp., while plaintiff's motion was under subdivision 1 thereof. By the introduction of evidence before disposal of the motion defendant did not thereby waive his motion for nonsuit ( Carney v. Duniway, 35 Or. 131, 57 P. 192, 58 P. 105), and until...