| Or. | Dec 21, 1915
delivered the opinion of the court.
It appears from the record that Messrs. Crumpacker & Coovert, of Portland, as attorneys for plaintiff, commenced this action. A cause of action is asserted in the complaint. Defendants did not ask for any affirmative relief. On May 8, 1915, the clerk of the Circuit Court wrote the above-named attorneys that the case was set for trial on June 12, 1915, or as soon thereafter as reached. On May 17th they wrote the clerk in regard to an earlier or later date of trial, and, probably relying upon memory, stated that they were advised that the cause was set for June 15th. The clerk immediately answered, calling attention to the correct date. Early in June, Mr. Crumpacker requested Mr. Webster, of Portland, who was about to visit Klamath Falls, to appear for plaintiff in the cause, which he agreed to do. Mr. Crumpacker was of the impression that the case was set for June 16th,
“A judgment of nonsuit may be given against the plaintiff as provided in this chapter: (1) On motion of the plaintiff, at any time before trial, unless a counterclaim has been pleaded as a defense; (2) on motion of either party, upon the written consent of the other filed with the clerk; (3) on motion of the defendant, when the action is called for trial, and the plaintiff fails to appear, or when after the trial has begun, and before the final submission of the cause, the plaintiff abandons it, or when upon the trial the plaintiff fails to prove a cause sufficient to be submitted to the jury.”
Section 184, L. O. L., provides:
“When a judgment of nonsuit is given, the action is dismissed.; but such judgment shall not have the effect to bar another action for the same cause. ’ ’
In Carroll v. Grande Ronde Elec. Co., 49 Or. 477" court="Or." date_filed="1907-07-02" href="https://app.midpage.ai/document/carroll-v-grande-ronde-electric-co-6900462?utm_source=webapp" opinion_id="6900462">49 Or. 477 (90 Pac. 903), in an action for wrongful death, defendant’s motion for a nonsuit, on the ground that deceased was guilty of contributory negligence, was granted; the record entry reciting that the deceased was guilty of contributory negligence which was the proximate cause of the injury. It was held that the judgment was no bar to a subsequent action on the same cause, the only point properly decided being that plaintiff’s-case, as presented, was not sufficient in law to be submitted to the jury. - In Brown v. Lewis, 50 Or. 358, 363 (92 Pac. 1058), it was held that a motion for nonsuit is the only proceeding open to defendant at the close
In the present case, when the plaintiff failed to appear at the trial, and no good reason for final determination of the cause was shown, the appropriate remedy of the defendants, if they desired a judgment, was that of nonsuit, as provided in Section 182, subdivision 3, L. O. L. Defendants would have been entitled to such a judgment if it had been requested. We do not hold that the trial court could not under any circumstances, as upon successive nonsuits, or when good cause is shown for the rendition of a verdict, permit one to be rendered and enter judgment. Such a case is not before us. Here, a jury was impaneled when counsel for plaintiff were absent by reason of mistake or misunderstanding as to the date of trial. A witness was sworn, but no evidence elicited. Only the form of a trial was observed. By mistake plaintiff has not been accorded a trial nor “had his day in court.” Under all the conditions, we are of the opinion that the trial court erred in the exercise of its discretion in refusing to relieve the plaintiff from the judgment in question. The judgment of the lower court should be reversed and the cause remanded for a new trial.
It is stated by counsel in defendants’ brief that, since this appeal was taken, defendant B. E. Cantrall has died; therefore the judgment herein will be held in abeyance for a time awaiting appropriate action in such case.
Reversed and Remanded.