1 Bur. 148 | Wis. | 1843
This case came before the district court for Rock county, by certiorari to a justice of the peace. The error complained of was, that the justice after hearing the -testimony on part of the plaintiff in support of the claim and pertinent to the issue, on motion of the defendant, for reasons therein stated, entered a nonsuit against the plaintiff’s consent. This judgment was affirmed by the district court; following, in this particular, the practice in the State of New York. That practice we do not recognize in the district court, and consequently the same, if not better reasons should prevent it before a justice. If it were tolerated, serious injustice might in some instances be done. The supreme court of the United States have repeated the rule so frequently, that after pertinent evidence is received on part of plaintiff, the court has no authority to order a peremptory nonsuit, against the will of the plaintiff, on the trial of the cause before a jury, that the point is not now to be questioned. The plaintiff may agree to a nonsuit, but if he do not so choose, the court cannot compel him to submit to it. Elmere v. Grymes, 1 Peters, 471; Dewolf v. Rabaud and others, id. 497; Crane v. The Lessee of Morris, 6 id. 598.
The case was disposed of by the justice. He was bound to the same rule, as if there had been a jury impaneled. As the evidence comes up imperfectly, it might be unsafe to risk an opinion, on the points of law attempted to be raised upon the record, and the court, for this reason, will not attempt their consideration.
The judgment must be reversed, and the case certified to the district court of Rock county, with directions to the said district court to reverse the judgment of the justice.
