50 Kan. 739 | Kan. | 1893
The opinion of the court was delivered by
The Kansas City, Wyandotte & Northwestern Railroad Company commenced an action against A. D. Walker and H. Tucker for the specific performance of a contract to convey land for a right-of-way, and for the payment of certain sums of money. The answer contained a general denial, and also set up counterclaims and set-offs for the unlawful taking of land owned by the defendants. The
Section 397 of the civil code reads: “An action may be dismissed without prejudice to a future action by the court where the plaintiff fails to appear on the trial.” Statutes are construed in reference to the principles of the common law, if possible. Under the common law, the plaintiff took a nonsuit by absenting itself from court when its case was called for trial. (16 Am. & Eng. Encyc. of Law, 721-723; 2 Tidd’s Practice [4th Am. ed.], 761; Case v. Hannahs, 2 Kas. 490; Moore v. Toennisson, 28 id. 608, 610; Herring v. Poritz,
“ The failure of the plaintiff to appear when his case is called for trial is equivalent to the expression of an election on his part to become nonsuit. In such a case no judgment can be taken against him, but his action should be dismissed, or judgment of nonsuit entered.”
There was in fact in this case no trial, either of the law or of the facts. The plaintiff, upon whom rested the burden of the issues, was not present to offer' any evidence, and the defendants were not called upon to offer any evidence to sustain the general denial. The general rule is, that a permission to a court is a command, if it relates to the rights of suitors. (Bish. St. Cr. [2d ed.], § 112.) “ May be dismissed,” in § 397 of the code, should be construed to read “ shall be dismissed.” As the plaintiff did not appear on the trial, the cause, when called, should have been dismissed at the costs of the plaintiff without prejudice to a future action, as the defendants withdrew their counterclaims and set-offs. There was such error in the proceedings, on account of the judgment being rendered in the absence of the plaintiff, that the district court should have sustained the motion for the new trial, or should have so corrected the judgment as to show a dismissal without prejudice.
The judgment of the district court will be reversed.