The plaintiff below is the plaintiff in error here. He brought an action against the defendant to recover $5,000 damages for the negligent killing of George E. Gerew. The defendant denied its liability. There was a trial of the issues before a jury. At the close of the evidence the defendant moved the court to instruct the jury that under the pleadings and evidence they must find a verdict for the defendant. The court granted the motion, and the plaintiff excepted. But before the jury were actually instructed the plaintiff prayed leave of the court to take an involuntary nonsuit. The court granted him permission and a judgment was rendered accordingly. Subsequently the plaintiff moved the court to set aside this judgment of nonsuit and to grant a new trial of the action, and this motion was denied. He has sued out this writ of error to secure a reversal of this judgment of nonsuit on account of numerous alleged errors in the trial of the action, and especially because the court held that the evidence was insufficent to sustain his cause of action and that the defendant was entitled to a verdict thereon.
But invited error is irremediable. If the court erred in the rendition of the judgment of nonsuit, it erred at the plaintiff’s request and to the prejudice of the defendant, and that error can form no ground for the reversal of the judgment at the suit of the plaintiff who procured it. A judgment of nonsuit upon the motion or request of the defendant and against the objection or protest of the plaintiff is reviewable by writ of error. Central Transp. Co. v. Pullman’s Car Co.,
But a judgment of nonsuit on the motion, at the request or with the consent of the plaintiff, is not reviewable by writ of error at his suit, because he is estopped from convicting the trial court of an error which he requested it to commit. U. S. v. Evans, 5 Cranch (U. S.) 280,
“It is true that a plaintiff, who appears by the record to have voluntarily become nonsuit, cannot sue out a writ of error. United States v. Evans, 5 Cranch (U. S.) 280,3 L. Ed. 101 ; Evans v. Phillips, 4 Wheat. (U. S.) 73,4 L. Ed. 516 ; Cossar v. Reed, 17 Q. B. 540. But in the ease of a compulsory nonsuit it is otherwise; and a plaintiff, against whom a judgment of nonsuit has been rendered without his consent and against his objection, is entitled to relief by writ of error.”139 U. S. 39 , 11 Sup. Ct. 478,35 L. Ed. 55 .
In Koons v. Bryson,
“Where the record disclosed that the plaintiff had voluntarily become non-suited, a writ of error was refused him. Evans v. Phillips, 4 Wheat. (U. S.) 73,4 L. Ed. 516 ; Cossar v. Reed, 17 Q. B. 540; Central Transportation Co. v. Pullman’s Car Co.,139 U. S. 24 , 39, 11 Sup. Ct. 478,35 L. Ed. 55 .”
In Parks v. Southern Ry. Co.,
“It is highly important that tho court in the exercise of its discretion should not only see that equal and exact justice is done between litigants, but it is equally important that needless litigation should be speedily determined, and in the trial of cases the court should consider the rights of the defendant as well as those of the plaintiff, and, where it appears that all the evidence which it is possible to obtain has been offered and the case has been submitted to tne jury or to the court, it is the duty of the court, if in its opinion the evidence is not sufficient to justify a verdict in favor of the plaintiff, to direct the jury to return a verdict in favor of the defendant. The courts are not organized for the purpose of permitting the plaintiff in an action to experiment with a certain state of facts for the purpose of ascertaining the opinion of flic court, as to the law applicable to the same and then permit him to withdraw from the scene of conflict and state a new cause of action and mend his licks in another direction. Such policy, if adopted, would he productive of much mischief, and should not be tolerated.”
The difference between a judgment upon an instructed verdict and a judgment of nonsuit is that the former prevents, while the latter permits, the maintenance of another action for the same cause. When the evidence was closed in the suit before us, each party had established rights in the trial of this action. The plaintiff had the right to elect whether he would take a nonsuit (section 639, Rev. St. Mo. 1899; Chicago, M. & St. P. Ry. Co. v. Metalstaff,
- It is said that this was an involuntary nonsuit because the plaintiff was forced to take it by the decision of the trial court that he had proved no cause of action, and that the Supreme Court of Missouri has often so decided and has reviewed cases from the inferior courts of that state upon writs of error to such judgments. Williams v. Finks,
. The decisions of the Supreme Court of Missouri cited above, wherein it has reviewed by writs of error judgments of nonsuit of the character of that in hand, are urged upon our attention, and section 914 of the Revised Statutes of 1899, the act of conformity, which requires the forms and modes of proceeding in civil actions at law in the Circuit and District Courts to conform as near as may be to those in the courts of the state in which the actions arise, is invoked to induce us to follow the practice of that court. But the power and practice of the national appellate courts and the means of reviewing the judgments of the Circuit and District Courts therein are neither conditioned, affected, or controlled by the statutes of the states, the practice of their courts, or the act of conformity. Section 914 is limited by its express terms to the practice and proceedings in the Circuit and District Courts to procure their judgments. It has no application to the practice or proceedings of the federal, appellate courts
It has been a fixed rule of practice of the appellate courts of the United States for almost 100 years that no writ of error will lie at the suit of a plaintiff to review a judgment of nonsuit which has been rendered at liis request or with his consent, and that no judgment will be reversed for an error which the plaintiff in the writ has invited the court to commit, and the fact that the Supreme Court of Missouri calls such a nonsuit “involuntary” and reviews it presents no persuasive reason why one of the national appellate courts should depart from this salutary rule while there are many why it should abide by and enforce it. Courts are established and maintained to settle and terminate controversies between citizens and to enforce their rights, not to furnish debating societies for the trial of legal experiments. The chief reason of their being is to end, not to perpetuate, disputes. “Interest reipublic;e ut sit finis litium.” A practice which permits a plaintiff to experiment with the courts and to harass the defendant interminably at will runs counter to the basic purpose of legal tribunals and of all civilized governments, and, instead of assisting to wisely administer justice, it inflicts and perpetuates wrong. Yet this is the practice which a grave review of such nonsuits as that in hand would establish. Under it a plaintiff could introduce his evidence and try the Circuit Court to see whether or not it would sustain his action. If it granted a motion to instruct a verdict against him, he could procure from the court an involuntary nonsuit, then sue out a writ of error and try the appellate court, and, if it would not sustain his action, he could pay the costs, bring another action for the same cause, and continue his actions and experiments interminably. The federal courts ought not to permit themselves to he made the subjects of such experiments. The only material interests involved in the review of such judgments are the costs of the actions, for the plaintiffs may try their causes again whatever the decisions of the appellate courts, and the demands upon these
. There is a more compelling reason why proceedings of this nature should not be sustained. The plaintiff is not the only party to a lawsuit who has rights. The defendant has some, and one of them is the right, not only to a fair and impartial trial of the action against him, but to a final adjudication of the alleged cause.which the plaintiff presents and to a termination of the litigation upon it. This right he can never enforce, this termination he can never secure under the practice here proposed, for there is no limit to the number of actions on the same cause, or on the want of it, which the plaintiff may bring, review, and dismiss under it.
The conclusion is that a writ of error will not lie in a national appellate court at the suit of the plaintiff to review a judgment of nonsuit or dismissal which has been rendered at his request or with his consent after the court has held at the close of the trial that the defendant is entitled to a verdict.
This case has been considered and determined upon the theory that the evident intention of the plaintiff and of the court to render a judgment of nonsuit had been effected. But the form of the judgment is such that a claim may be made that it was a judgment on the merits. For this reason alone the judgment will be reversed, the defendant in error will recover its costs in this court, and the ease will be remanded to the Circuit Court, with directions to render a judgment that the action be dismissed without prejudice to the right of the plaintiff to maintain another for the same cause, and that the defendant recover its costs of the plaintiff, and it is so ordered.