97 P. 44 | Or. | 1908
Lead Opinion
delivered the opinion of the court.
A statement of the material testimony offered is deemed essential to an understanding of the action of the court in granting the nonsuit. M. Krebs declared upon oath: That on March 27, 1907, at Independence, the plaintiff was in possession of the property in question; that about 10 o’clock at night of that day, when he was ready to go home, he could not find his team; that soon thereafter he saw Taylor, and, having learned that he had taken the team, he asked him to get it, but the latter refused to comply with the request; and that the witness made no other demand for a return of the property. The testimony respecting the demand is corroborated by the sworn declarations of Frank Flakes, who was present when Krebs requested the marshal to return the team. L. Krebs testified that the reasonable value of the use of all the property described in the complaint was $4 a day. The court, upon objection of defendants’ counsel that no demand for a return of the property was necessary, excluded copies of letters mailed to the defendants, respectively, requesting them to return to the plaintiff the chattels specified. The court was then requested to grant a judgment of nonsuit on the ground that no testimony had been offered in support of the cause of action stated, sufficient to be submitted to the jury, and that the complaint alleged a joint taking by the defendants, while the testimony tended to show that Taylor alone seized the property. When this motion was interposed, plaintiff’s counsel stated that they elected to proceed' against Taylor and to dismiss the action as to Dickenson, whereupon the court announced that leave to do so would be granted, if the defendants’ counsel consented, but. upon their refusal the action was dismissed without prejudice.
The foregoing synopsis is believed to be a fair statement of all material parts of the bill of exceptions. The
The plaintiff having failed to offer such proof, no error was committed in granting the nonsuit, which judgment is affirmed. AFFIRMED.
Rehearing
Reargued November 25, decided December 15, 1908.
On Petition for Kehearing.
On rehearing, former opinion set aside and judgment reversed.
delivered the opinion of the court.
At a rehearing herein, granted upon a petition therefor, it. appeared that the • abstract of the record, which was employed in lieu of a transcript, did not affirmatively show, that, when the plaintiff’s counsel announced to the court their election to proceed against Taylor and to dismiss the action as to Dickenson, the cause had not been submitted to the jury—a fact that was not observed .at the prior trial. The authority to make such choice is not discussed in the former opinion, but the right to do so was tacitly admitted and the decision placed on the ground that, if an error was committed in denying the exercise of the prerogative asserted, the action of the court in this respect was without prejudice, because the testimony received was insufficient to entitle the plaintiff to a recovery.
It will be seen, from an examination of the provision last quoted, that, when the action is to be continued against one or more joint defendants, the rendering of a judgment against the others is a matter within the discretion of the trial court. This liberty of judgment is not expressly authorized by the preceding section, and, in view of the ancient rule governing actions ex delicto, we believe the plaintiff was empowered to exercise the election proposed, in denying which an error was committed.
The conclusion announced in the former opinion is set aside, the judgment reversed, and the cause remanded for a new trial. Reversed.