Case v. Hannahs

| Kan. | Mar 15, 1864

By the Court,

Kingman, J.

In this case after the jury had been empanneled and the plaintiff had introduced all his testimony, the defendant moved the Court to non-suit the plaintiff on account of an entire failure of proof, which motion was sustained, to which the plaintiff excepted and brings the case to this Court on that point alone. All the evidence in the case is spread upon the record.

The only provisions of the Code authorizing a case to be dismissed, are to be found in Section 382. In all but the five enumerated cases, the decision must be on the merits. The Court is no where in the Code authorized to dismiss a suit upon the application of the defendant for want of sufficient proof, or even in the absence of proof to sustain the plaintiff’s claim.

The object of the Code was undoubtedly to put an end to litigation, by requiring a decision of the case upon its merits after it is gone into, unless dismissed by the plaintiff. If there is a total failure of proof on the part of the plaintiff on any point essential to his recovery in the action, the Court should so instruct the jury, or so decide, if the trial be by the Court, and thus put an end to the controversy.

If the plaintiff has been disappointed in his proof he may dismiss and show his rights to prosecute in another action.

In granting a judgment of non-suit against the wishes of the plaintiff, the Court erred. But it is not every error that is cause of reversal. Section 305 provides that no exception shall be regarded unless it is material aud prejudi cial to the substantial rights of the party excepting.

If the record shows that the plaintiff was not injured by the action of the Court,'nor his rights prejudiced thereby, then the case will not be reversed by reason of the error of the Court helow, for it is one of those' exceptions that must be disregarded. The record shows that plaintiff relied on a purchase under execution for his title to the property in controversy, which execution was against M. C. Dickey, and on whose property it was levied, but in producing his proof entirely failed to show any service of process on Dickey in the suit wherein the judgment was rendered on which the execution was issued.

A want of service of summons rendered the judgment void, and any sale or purchase under it entirely null. On this point, which was essential to the plaintiff’s recovery, his proof entirely and wholly failed. When he announced that he was through with his evidence, had the Court given proper instructions to the jury, they would have been bound to find for the defendant. In what then are the plaintiff’s rights' prejudiced, that a judgment was entered which, instead of being a bar to his claim, dismisses his suit with full right to bring another suit for the same cause of action ? Instead of being prejudicial, the error may be a benefit to him.

The case will not, therefore, be reversed at his instance.

All the justices concurring.