Reams v. Sinclair

• Decision Date: 02 January 1915
• Docket Number: 17,873
• Parties: JOHN F. REAMS, APPELLEE, v. ALBERT W. SINCLAIR, APPELLANT
• Court: Nebraska Supreme Court

150 N.W. 826

97 Neb. 542

JOHN F. REAMS, APPELLEE, v. ALBERT W. SINCLAIR, APPELLANT

No. 17,873

Supreme Court of Nebraska

January 2, 1915

APPEAL from the district court for Franklin county: ERNEST B. PERRY JUDGE. Affirmed.

AFFIRMED.

W. C Dorsey, for appellant.

Bernard McNeny and George J. Marshall, contra.

SEDGWICK J. LETTON, ROSE and FAWCETT, JJ., not sitting.

OPINION

SEDGWICK, J.

This plaintiff began an action in ejectment against the defendant in the district court for Franklin county. When the evidence was completed, the trial court directed a verdict for the defendant. Upon appeal to this court, the judgment of the trial court was affirmed. Reams v. Sinclair, 88 Neb. 738, 130 N.W. 562. Afterwards the plaintiff began this action in equity in the district court for Franklin county to establish and quiet his title in the same land. The trial court found the issues in favor of plaintiff, and entered a decree quieting his title, and the defendant has appealed.

The defense relied upon is the former adjudication in the ejectment action. In that action, as above indicated, the parties proceeded to trial, and, when the evidence was in and the parties had rested, the court, upon the defendant's motion, directed the jury to find a verdict in the defendant's favor. There is considerable discussion in the briefs and many authorities are cited upon the question whether a judgment upon an involuntary nonsuit is a bar to another action for the same cause and between the same parties. The seeming conflict in the authorities upon this point is apparently largely due to changes from the common law practice introduced by the code procedure, and also to the different provisions in the codes of the various states. Our code provisions are plain and simple, and we have not generally found difficulty in applying them. Section 7654, Rev. St. 1913, provides: "An action may be dismissed without prejudice to a future action: First, by the plaintiff, before the final submission of the case to the jury * * *; second, by the court where the plaintiff fails to appear at the trial; third, by the court for want of necessary parties; fourth, by the court on the application of some of the defendants where there are others whom the plaintiff fails to diligently prosecute; fifth, by the court for disobedience by the plaintiff of an order concerning the proceedings in the action. In all other cases on the trial of the action the decision must be upon the merits."

If the plaintiff desires that the disposition of his case shall be without prejudice to another action, he can dismiss it "before the final submission of the case." If he persists and takes the judgment of the court on his case, it will be res judicata of the issues involved therein. It is said in the brief that, when the defendant moves for nonsuit and his motion is overruled, the defendant may still proceed with his case, and that the same privilege should be allowed the...