Van Wagenen v. Chladek

• Decision Date: 31 May 1911
• Citation: 131 N.W. 507,27 S.D. 436
• Parties: VAN WAGENEN v. CHLADEK.
• Court: South Dakota Supreme Court

27 S.D. 436

131 N.W. 507

VAN WAGENEN

v.CHLADEK.

Supreme Court of South Dakota.

May 31, 1911.

Appeal from Circuit Court, Bon Homme County; R. B. Tripp, Judge.

Action by Louis Chladek against Frank Van Wagenen. From an order sustaining plaintiff's motion to dismiss the action without prejudice after a verdict against him, defendant appeals. Reversed and remanded, with directions.Elliott & Stilwill, for appellant.

W. L. Redden and C. H. Dillon, for respondent.

HANEY, J.

This is an action by a lessee to recover of his lessor triple damages for forcibly ejecting and excluding him from the possession of certain real property. All the allegations of the complaint were denied except the execution of the lease, and defendant pleaded three counterclaims, one for unpaid rent and two for injuries to the leased premises. Plaintiff replied to the counterclaims with a general denial. On the trial plaintiff having introduced evidence and rested, the defendant, without offering any evidence, requested the court to instruct the jury to return a verdict in favor of the plaintiff for nominal damages only, which request was granted, and a verdict was returned and entered wherein the jury found “in favor of the plaintiff on the issues in this case,” and assessed “his damages at the nominal sum of $2.00.” Subsequently plaintiff made application for a new trial on the ground of errors in law occurring at the trial, specifying certain rulings relating to the rejection of evidence offered to prove the extent of plaintiff's damage and the instructions given by the court, which application was denied. Thereafter the plaintiff moved the court to enter a judgment dismissing the action without prejudice, and defendant moved for judgment on the verdict. Plaintiff's motion was granted, defendant's was overruled, and the latter appealed.

[1]As no evidence was offered by the defendant and he conceded by his request for the instructions given that plaintiff was entitled to the verdict returned, he is not in position to assert that the action should have been retained for the purpose of having his alleged counterclaims adjudicated.

[2]So the precise question is whether a plaintiff may as a matter of right, or in the discretion of the trial court, have a nonsuit or dismissal without prejudice after a verdict has been entered and an application for a new trial has been refused; no formal judgment having been entered on the verdict. In other words, whether an verdict may be vacated in any manner other than that prescribed by the code of civil procedure. If the action taken in this instance was authorized, a trial court may in any case in its discretion grant a new trial after the statutory method of procedure has been exhausted-a conclusion which should not be accepted in absence of cogent reasons. Our Code of Civil Procedure, so far as we are aware, is silent as to when an action may be withdrawn without prejudice. It does, however, provide in detail what shall be done to vacate a verdict. Rev. Code Civ. Proc. §§ 300-308. It “establishes the law of this state respecting the subject to which it relates.” Id. § 3. The method of procedure therein prescribed clearly excludes the method pursued by the trial court in this case. “Under the earlier English decisions plaintiff might become nonsuit even after verdict if dissatisfied with the damages awarded by the jury. But the rule was changed by 2 Hen. IV, c. 7, providing that ‘after verdict a plaintiff shall not be nonsuit.’ The English rule before the enactment of the statute mentioned was followed in one early decision in this country, but so far as the books show no other American courts have permitted a nonsuit after verdict.” 14 Cyc. 400. It is true this court has said: “The plaintiff may dismiss his action at any time before...