Cook County IL Archives Court.....Ross, V City Of Chicago 1850
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 25, 2008, 8:00 am

Source: Records Of Cases Illinois
Written: 1850

Richard C. Ross et al., appellants, v. The City of Chicago.

Appeal from Cook.

A plaintiff has no right to a nonsuit after a case has been submitted to a 
jury. (a)

This was an action of covenant, brought by the city of Chicago on a bond given 
by Ross, who had been elected marshal of the city of Chicago, as principal, 
and the other defendants as his sureties. The declaration alleged a breach of 
the covenant, in two several counts. Several pleas were filed, upon which 
issue was joined. At the November term, 1849, of the Cook Circuit Court, the 
cause was tried before H. T. Hickey, Judge, and a jury, when all of the issues 
were found for the defendants, and a judgment was entered, that the defendants 
do have and recover of the said plaintiff their costs and charges, by them 
about their defense in this behalf expended, and have execution therefor. A 
motion for a new trial was made, and overruled. A motion was subsequently made 
by the plaintiff, to set aside the verdict of the jury entered in the cause, 
and for leave to submit to a nonsuit; which motion was sustained by the court. 
To this decision the defendants in the Circuit Court excepted, and prayed this 
appeal. The errors assigned, complain of the decision of the Circuit Court in 
setting aside the verdict after judgment, to enable the plaintiff to submit to 
a nonsuit.

N. B. Judd, and Manniere & Meeker, for appellants, made the following points:

The twenty-ninth section of the Revised Laws of 1845, entitled "Practice," 
provides; "That every person desirous of suffering a nonsuit on trial, shall 
be barred therefrom, unless he do so before the jury retire from the bar.

The power of the judge to grant new trials is a discretionary one, growing out 
of some injustice done by the jury on the merits, and is never granted except 
in the plainest cases. That no injustice was done in this case, is manifest 
from the fact, that a new trial was refused on the merits.

This judgment involves a palpable evasion of the statute, and in effect a 
repeal of it; since, if a nonsuit may be obtained after verdict, in a case 
where a party should have suffered nonsuit before the jury retired, then he is 
not barred as the statute declares he shall be.

Chickering & Lull, for appellee:

Courts at their discretion may allow a nonsuit, where a plaintiff cannot claim 
it as a right: Haskell v. Whitney, 12 Mass. Reports, 47; Lock v. Wood, 16 
ibid, 307.

The Practice act is confined to proceedings "on trial;" that is, that the 
plaintiff, when such case is "on trial," shall not be permitted to suffer a 
nonsuit as of right, unless he do so before the jury retires; thus confining 
its provisions to the particular trial, and not extending them to subsequent 
proceedings, where for any cause there has been a mistrial, or an erroneous 
verdict. For the exercise of such a discretion, error cannot be assigned. 

Treat, C. J. This was an action of covenant brought by the city of Chicago 
against Dyer and others. The defendants pleaded several pleas, on which issues 
of fact were formed. The jury returned a verdict for the defendants, on all of 
the issues. A motion for a new trial was made and refused. The court then 
sustained an application to set aside the verdict, and permit the plaintiff to 
submit to a nonsuit. That decision is assigned for error.

There was a trial on the merits, and a finding in favor of the defendants on 
all of the issues. No error had intervened to the prejudice of the plaintiff, 
and a motion for a new trial was denied. In this state of case, the defendants 
were clearly entitled to a judgment on the verdict—a verdict conclusive of the 
matters submitted to the jury. Instead of entering such a judgment, the court 
sustained an application to set aside the verdict, and allow the plaintiff to 
suffer a nonsuit; thereby depriving the defendants of their right to a final 
judgment, and leaving the whole subject matter of the suit open and 
undetermined. This action of the court cannot be considered as a 
reconsideration and allowance of the motion for a now trial. It was not the 
understanding of the parties, nor the design of the court. The verdict was 
vacated for the sole purpose of enabling the plaintiff to suffer a nonsuit. It 
was in effect permitting the plaintiff to dismiss the case after verdict. A 
plaintiff has no right to a nonsuit after the case has been submitted to a 
jury. The statute provides, that "Every person desirous of suffering a nonsuit 
on trial, shall be barred therefrom, unless he do so before the jury retire 
from the bar:" R. S., ch. 83, sec. 29. But it is insisted, that it is within 
the discretion of the court to permit a plaintiff to become nonsuit after 
verdict. The court possesses no such discretion. In the case of Price v. 
Parker, 1 Salkeld, 178, it is said: "Upon a motion to discontinue upon payment 
of costs, the court held, that after a general verdict there can be no leave 
to discontinue; for that would be having as many new trials as the plaintiff 
pleases; but that after a special verdict there may, because that is not 
complete and final; but in that case it is a great favor." In the case of the 
Judge of Probate v. Abbot, 13 New Hampshire, 21, where the authorities on this 
question are collected and considered, the court came to the conclusion that a 
plaintiff could not become nonsuit, after verdict.

The judgment is reversed, and the cause remanded, with directions to the court 
to enter final judgment for the defendants on the verdict. 

Judgment reversed.

-----------------
(a) In order to bar the plaintiff's right to submit to a non-suit, the jury 
must have the whole of the case, including not only all the evidence, but the 
instructions of the court: Berry v. Savage et al., 2 Scam., 261; Amos v. 
Sinnott, 4 Scam.. 440.

When a case is submitted to court for trial, the plaintiff may take a nonsuit 
after the court has announced its opinion, and before a note thereof is 
entered: Howe et al. v. Harrow, 17 Ill., 494.

Where the court found the law and the facts, and a note was made, but the 
court opened the finding as to the damages, which was again taken under 
consideration, held that plaintiff had not lost his right to take a nonsuit: 
Adams v. Shepard, 24 Ill., 464.

See also Gordon v. Goodell, 34 Ill., 429.

Additional Comments:
Reports of Cases Determined in the Supreme Court of the State of Illinois from 
November Term, 1850, to June Term, 1851, both inclusive by E. Peck, Counsellor 
at Law. Volume XII. Reprinted from the Original Edition, with Annotations by 
William Gordon McMillan of the Chicago Bar. Callaghan & Company, Chicago, Ill. 
1881.

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