This motion rests upon the single proposition that no appeal lies from a judgment of nonsuit.
At common law a judgment of nonsuit was not reviewable for the obvious reason that it was founded on the assent of the plaintiff. An involuntary nonsuit was unknown to the common law. Under our practice, the right of court to non-suit a plaintiff, where the evidence produced is not sufficient to sustain a verdict, is expressly declared by statute. 9 Sess. Laws, p. 99.
A judgment of nonsuit rendered by the court in the exercise of this power is, as to the defendant, in invitum; is a complete disposition of the case, and is final within the meaning of the statute concerning appeals. Voorhies v. Woodhall et al., 4 Vroom, 482 ; English et al. v. Devarro, 5 Blackf. 589 ; Stoppenbach v. Zohrlant, 21 Wis. 390.
Any other view might operate to preclude a plaintiff from having his right of action considered by the appellate court. Motion to dismiss is
Overruled.