47 Cal. 542 | Cal. | 1874
This is an action for the recovery of damages claimed to have been sustained by the plaintiffs in the destruction of their property by a fire, alleged to have been negligently kindled and carelessly tended by the defendant upon his own premises, and adjoining the premises of the plaintiffs, so that it spread and extended to the latter, consuming their fences, hay, farming utensils, etc. The action was commenced on the 25th day of April, 1870.
The defendant, among other defenses, pleaded that on the twenty-fifth day of November, 1869, the plaintiff commenced an action against him to recover damages for the same trespasses and injuries, and that thereafter such proceedings were had therein: that on the 17th day of January, 1870, by agreement of counsel, a judgment was rendered and entered by the Court to the effect that the cause be dismissed, each party paying his own costs, which said costs so adjudged against him, amounting to some thirty-five dollars, the said defendant had paid before the commencement of the present action. The defendant asked the Court to instruct the jury that the judgment dismissing the former action brought by the plaintiff was a bar to their recovery in this, but the Court refused to so instruct them, and its refusal in that respect is relied upon here as error.
It is an undoubted rule that a nonsuit, suffered for any cause, is not a bar to an action subsequently brought upon the same cause of action. To operate such a bar the judgment must have been one rendered upon the merits, or the proceedings in the former action must have amounted to a retraxit, as known in suits at common law, which, being “an open and voluntary renunciation of his suit in Court,” the plaintiff was not left at liberty to afterward renew it.
A retraxit at common law, it is true, must have been the act of the plaintiff appearing in his proper person in Court, and not for that purpose by his attorney. But under our statute concerning attorneys and counselors at law (Sec. 9) this authority must be considered to be conferred upon the attorney of record in a cause (Board of Commissioners v.
The statute (Prac. Act, Sec. 148) provides for both a judgment of nonsuit and a judgment of dismissal, and, by subdivision 2, it is provided that a judgment of dismissal may be rendered at the application of either party upon the written consent of the other. We are of opinion that such a dismissal, when had by such consent, amounts to the open and voluntary renunciation of a suit pending, which must be held to operate a retraxit. We have the less hesitation in giving this construction to the statute because, in practice in this State it has generally, perhaps universally, been considered to be the intention of the parties, in agreeing to dismiss an action, to thereby put an end to the controversy.
In the Bank of the Commonwealth v. Hopkins, 2 Dana, 395, the first action brought was, by the judgment of the Court, “ dismissed agreed.” To a second action, brought upon the same cause of action, the defendant pleaded that judgment as a defense. In the opinion of the Court sustaining the defense, Hr. Chief Justice Robertson uses this language: “It has been frequently decided by this Court that the legal deduction from a judgment dismissing a suit ‘agreed,’is that the parties had, by their agreement, adjusted the subject-matter of controversy in that suit; and the legal effect of such a judgment is, therefore, that it will operate as a bar to any other suit between the same parties on the identical cause of action then adjusted by the parties, and merged in the judgment thereon rendered at their instance, and in consequence of their agreement.”
In the case at bar there was not only a mutual agreement that the action be dismissed by the judgment of the Court, rendered pursuant to the agreement, but the defendant was, by the terms of the agreement of dismissal, adjudged to pay-costs, which, except for the agreement and the judgment by which it was carried into effect, he was not bound to pay, but might have otherwise recovered against the plaintiff. These costs he had paid before the commencement of the present action, and to that extent the
Judgment reversed, and cause remanded for-a new trial.
The foregoing opinion was delivered at the July Term, 1872. A rehearing having been granted, the following opinion was delivered at the January Term, 1874:
The argument on the rehearing has failed to shake our confidence in the correctness of the views expressed in our former opinion in this cause. Section 148 of the Practice Act, then in force, provides that “an action may be dismissed or a judgment of nonsuit entered in the following cases: First, by the plaintiff himself, at any time before trial, upon the payment of costs, if a counter-claim has not been made. Second, by either party upon the written consent of the other. Third, by the Court when the plaintiff fails to appear on the trial, and the defendant appears and asks for the dismissal. Fourth, by the Court, when upon the trial, and before the final submission of-the case, the plaintiff abandons it. Fifth, by the Court, upon motion of the defendant, when upon the trial the plaintiff fails to prove a sufficient case for the jury.” The judgment of dismissal put in evidence in this case does not come within
Judgment reversed, and cause remanded for a new trial. Bemittitur forthwith.
Mr. Chief Justice Wallace did not express an opinion on the rehearing.