Opinion
October 16, 1929.
January 29, 1930.
Practice C.P. — Non-suit — Motion for — Voluntary non-suit with leave to take off — Judicial discretion — Abuse — Act of March 28, 1815, 6 Smith's Laws, 208 — Act of April 16, 1903, P.L. 216.
In an action of assumpsit, to recover damages for breach of a contract, the trial had proceeded to the taking of evidence upon the part of the defendant, when counsel for the plaintiff moved the court to enter a voluntary non-suit in the case with leave to take it off. The court refused to allow the motion unless the defendant's counsel agreed, which the latter refused to do.
In such circumstances the refusal of plaintiff's motion was not, as a matter of law, an abuse of judicial discretion, and a judgment for the defendant will be affirmed.
A plaintiff has the right under the Act of March 28, 1815, 6 Smith's Laws, 208, and the Act of April 16, 1903, P.L. 216, to suffer a non-suit at any time until the jury have agreed. A discontinuance differs from a voluntary non-suit in that it is not a right, but its allowance is within the discretion of the court.
A motion for a voluntary non-suit with a request appended to it for leave to take off the non-suit involves the exercise of judicial discretion and is not a matter of right.
Appeal No. 168, October T., 1929, by plaintiff from judgment of M.C., Philadelphia County, December T., 1926, No. 476, in the case of Leo Donosa v. Henry G. Ueltzen.
Before PORTER, P.J., TREXLER, KELLER, LINN, GAWTHROP, CUNNINGHAM and BALDRIGE, JJ. Affirmed.
Assumpsit to recover damages for breach of contract. Before BROWN, J., without a jury.
Motion for voluntary non suit with leave to take it off.
The facts are stated in the opinion of the Superior Court.
The court refused the motion and entered judgment for the defendant. Plaintiff appealed.
Error assigned was the refusal of the plaintiff's motion.
Joseph A. Keough, and with him Levi Mendel, for appellant.
No appearance and no printed brief for appellee.
Argued October 16, 1929.
The plaintiff brought this action to recover damages for breach of a contract. The case came on for trial and had proceeded to the taking of evidence upon the part of the defendant when counsel for plaintiff moved the court "to enter a voluntary nonsuit in this case with leave to take it off."
Our statutory regulations on the subject of voluntary nonsuit are found in the Act of March 28, 1815, 6 Smith Laws 208, which reads: "Whenever, on the trial of any cause, a jury shall be ready to give in their verdict, the plaintiff shall not be called, nor shall he then be permitted to suffer a nonsuit," and in the Act of April 16, 1903, P.L. 216, which provides that "whereas upon the trial of any cause in any court of common pleas of this Commonwealth, the plaintiff shall not be permitted to suffer a voluntary nonsuit after the jury have agreed upon the verdict, sealed the same, and separated, unless such nonsuit shall be specially allowed by the court for cause shown."
It was judicially determined in McLughan v. Bovard, 4 Watts 308, that the plaintiff has the right to suffer a nonsuit at any time until the jury have agreed. This ruling has been consistently followed: Easton Bank v. Coryell, 9 W. S. 153; Haviland v. Fidelity Ins. Trust and Safe Deposit Co., 108 Pa. 236.
If the plaintiff had simply stated that he suffered a voluntary nonsuit, he would have been within his absolute right; nothing further would have been required. In that respect, a voluntary nonsuit differs from a discontinuance as the latter is not of right; the allowance thereof is within the discretion of the court: Evans v. Clover, 1 Grant 164; Lamb v. Greenhouse, 59 Pa. Super. 329; Consolidated National Bank v. McManus, 217 Pa. 190; Beaver v. Slane, 271 Pa. 317.
The plaintiff saw fit to append to his motion for a voluntary nonsuit a request for leave to take off the nonsuit. The motion as made involved the exercise of judicial discretion and was not a matter of right. It included something else than a declaration of the plaintiff's willingness to stop a pending action, which is the effect of a voluntary nonsuit. The court had the right to consider the motion in its entirety. If this request as made would have been granted, the case could have been reinstated without bringing a new action. The motion did not indicate such an abandonment by the plaintiff of his cause as is contemplated by the suffering of a nonsuit; whether or not the motion should have been granted was for the trial judge's determination. We cannot say as a matter of law that its denial was an abuse of judicial discretion.
Judgment of the lower court is affirmed.