120 S.E. 174 | W. Va. | 1923
This writ is to review a judgment of the circuit court rendered on August 5, 1922, in which it was adjudged that plaintiff, Commonwealth Pipe Supply Company, recover of defendant, Nitro Products Corporation, $1118.00; but that execution should not issue thereon; and that the judgment should be satisfied and discharged by the payment of the sum recovered by defendant to the Charleston Industrial Corporation *14 which had that day recovered a judgment against plaintiff.
Plaintiff sued defendant on an open account for $2,726.72 by notice of motion for judgment served on defendant on February 7, 1921. The motion was to have been made on the 14th of February, 1921, at 10 o'clock A. M. On October 14, 1921, defendant filed what is denominated in the record as "defendant's plea and affidavit" which is to the effect that it did not owe the amount claimed but that it did owe $1,019.91, not including interest; and the statement is made in the paper that a suggestion in the suit of Charleston Industrial Corporation against plaintiff (Commonwealth Pipe Supply Co.), then pending in court, had been served upon defendant on the. . . . . . day of October, 1921. To this paper is attached the affidavit of J. B. Pitcher to the effect that he is president of the defendant corporation, familiar with its books of accounts, and that there is due from defendant to plaintiff, upon the demand stated in plaintiff's notice, the sum of $1,019.91, not including interest, and that that sum is all that is due from defendant to plaintiff. On the 4th day of August, 1922, plaintiff and defendant appeared by counsel and plaintiff moved to dismiss its suit, which motion was resisted by defendant and was overruled by the court. Then plaintiff moved the court for a nonsuit, which motion was resisted by defendant and overruled by the court, and exceptions were taken by defendant to the action of the court in both instances. Thereupon defendant moved the court to render judgment against it in favor of plaintiff, which motion was resisted by plaintiff, but the court overruled the objection of plaintiff, granted the motion of defendant and entered judgment against it for $1,118.00, directed that no execution should be issued thereon and that the same should be discharged by payment by defendant to Charleston Industrial Corporation on a judgment which the order says was rendered that day by the court against plaintiff in favor of said Charleston Industrial Corporation.
The errors alleged are: that the court refused to permit plaintiff to dismiss its action; refused to permit plaintiff to take a nonsuit; that it was error to render judgment against defendant on its own motion for the amount which it admitted to be due, over objection of plaintiff; that it was error *15 to preclude plaintiff from a jury trial of the amount claimed by it over and above the amount admitted to be due by defendant; and that it was error to direct payment of the amount recovered to a third party which had no interest in the litigation and was not a party thereto. In short, every ruling and action of the court is alleged to be erroneous; a comedy of errors.
It will not be necessary to review all these assignments of error. It was clearly error in the lower court to refuse to allow plaintiff to suffer a nonsuit on its motion. At common law the plaintiff could take a nonsuit at any time before the court received the verdict; but our statute, sec. 11, chap. 131, has changed the common law by providing that a party shall not be allowed to suffer a nonsuit unless he does so before the jury retires from the bar. The right thus given by the statute has been held in many of the states to be an absolute one which the court has no right to deny. In Banking Co. v. Ball,
The judgment will be reversed and the case remanded.
*17Reversed and remanded.