177 Wis. 490 | Wis. | 1922
Plaintiff asserts that she had an absolute right to dismiss her action against the defendant during the trial thereof and at any time before the argument to the jury had been concluded and cites sec. 2856, Stats., reading as follows:
“The plaintiff shall have no right to submit to a nonsuit after the argument of the cause to the jury upon the testimony shall have been concluded or waived.”
This provision first appears in the Revised Statutes of 1878 under the same section number. Prior to that time it seems to have been the circuit court rule. Taylor’s Revision of 1871, p. 2015.
It is argued that the right of nonsuit at any stage of the proceedings, at least prior to the entry of the verdict if not of the judgment, was a common-law right, and not having been done away with or modified by legislation is still preserved for a plaintiff, and that the only effect of the statute above quoted is to limit the time within which it can be made.
To what point in legal proceedings the common-law right of a plaintiff to discontinue his action or take a voluntary nonsuit extended we do not deem it necessary now to determine.
In Bertschy v. McLeod, 32 Wis. 205, it was stated
In a subsequent appeal of the same case, McLeod v. Bertschy, 33 Wis. 176, it was held, qualifying the former holding, that the court could not properly dismiss on plaintiff’s application the action brought by him where defendant had interposed a counterclaim. This was reiterated in a still .later appeal in the same case, 34 Wis. 244, 249.
In Hutchinson v. Paige, 67 Wis. 206, 29 N. W. 908, it was determined that there was no absolute right in the plaintiff to dismiss in an action brought for an accounting, although no affirmative relief was demanded by defendant but where a balance might be found due him.
In Grignon v. Black, 76 Wis. 674, 684, 45 N. W. 122, 938, it was stated that, although there can be no doubt as to the plaintiff’s right to dismiss his own action, such cannot prevent the defendant from insisting upon a trial of his counterclaim.
In State ex rel. Milwaukee v. Ludwig, 106 Wis. 226, 82 N. W. 158, although the statute above quoted was not expressly referred to, yet it was stated (p. 233) that such so-called absolute right of plaintiff to discontinue was subject to judicial discretion and determination and many considerations might require its denial, and such appeared in that case (p. 239).
In Anderson v. Horlick’s M. M. Co. 137 Wis. 569, 571, 572, 119 N. W. 342, the above cited statute was considered and it was held that such right to dismiss is not absolute and is to' be granted or withheld according to the justice of the situation, which might be such as to render assent an abuse of discretion (p. 572), although in that case, unlike the present, there had been a new trial granted after ver-
In Boutin v. Andreas, 161 Wis. 152, 152 N. W. 822, although the statute here quoted is not referred to and although the defendant there had interposed a counterclaim — • a fact not stated in the opinion,- — it was again held (p. 153) that there was no absolute right in plaintiff to dismiss his action and again confirms the prior modifying of the rule of the earlier cases such as McLeod v. Bertschy, 33 Wis. 176, supra.
Whatever, therefore, might be the rule at common law, there is in this state under the established rule no absolute, unqualified right in the plaintiff to insist, on his own motion, ,to a discontinuance or dismissal of the action at any stage before argument closed or waived.
The common-law rule has also been limited and substantially modified in Massachusetts. Marsch v. Southern N. E. R. Corp. 235 Mass. 304, 307, 126 N. E. 519. As stated in Derick v. Taylor, 171 Mass. 444, 50 N. E. 1038, in that state as well as in Maine and New Hampshire the rule is now recognized that such discontinuance could not be had as a matter of right after trial begun. See, also, Washburn v. Allen, 77 Me. 344, 352.
The plaintiff cites in support of her contention Slocum v. New York Life Ins. Co. 228 U. S. 364, 33 Sup. Ct. 523, where there is a discussion (p. 392) of the distinction between voluntary and compulsory nonsuits; but there was no question presented in that case of the plaintiff’s right to withdraw her suit or to dismiss, as is pointed out in the dissenting opinion by Mr. Justice Hughes (p. 410). In Michigan, under their court rule providing that the right exists until the jury have retired for their verdict, it is held an absolute right (Davis v. Detroit United Ry. 162 Mich. 240, 241, 127 N. W. 323) ; and under a statute and sitúa
In this conflict of authorities on the subject we shall adhere to our former rulings.
On the situation presented here there was no abuse of discretion by the lower court. The plaintiff had ample opportunity to present her side of the issue. The court had already delayed the trial on the first day to enable the plaintiff to produce Dr. Krueger; testimony was given by other witnesses on substantially the entire matter on which, so far’as the record here discloses, the absent witness would have testified. No showing of substantial prejudice to plaintiff is made. The court below could and this court may properly take into consideration the crowded condition of the trial court's calendar and the great expense to the community that would be incurred by unnecessary repetitions of trials; ánd while the plaintiff has a constitutional right to obtain justice freely, promptly, and without delay (sec. 9, art. I, Const.), yet a plaintiff has no' right to insist upon that which would have amounted, in this case, to unwarranted delay in and needless repetition of judicial proceedings.
By the Court. — Judgment affirmed.