Rohr v. Chicago, North Shore & Milwaukee Railroad, 179 Wis. 106

Rohr v. Chicago, North Shore & Milwaukee Railroad

179 Wis. 106 | Wis. | 1922

Owen, J.

It is apparent that the plaintiff’s attorney labored under the misapprehension that he was entitled to a voluntary nonsuit as a matter of course. Such is not the law. The authorities in this jurisdiction upon that question were recently fully reviewed in Obermeier v. Milwaukee E. R. & L. Co. 177 Wis. 490, 188 N. W. 603, resulting in the conclusion that a motion for a voluntary nonsuit, even though made before argument of the cause to the jury, is addressed *109to the sound discretion of the court. The denial of plaintiff’s motion for a nonsuit was therefore within the power of the court, and the result of the motion was not to terminate the cause then pending. That could only result from an order of dismissal. State ex rel. Milwaukee v. Ludwig, 106 Wis. 226, 82 N. W. 158. While plaintiff’s attorney no doubt acted, in good faith in declining further to participate in the trial, it may be remarked, though in no spirit of censure, that his conduct did not respond to the duty he owed his client or the court. Attorneys continually encounter adverse rulings from the court in the trial of causes. Even though they believe such rulings erroneous it is their duty to acquiesce therein. Not only the interest of their clients, which they have undertaken to protect, but the respect due from an attorney to the court, so- requires. It would be a reflection upon our system of judicial procedure if, in order to protect the interests of his client from the effect of an adverse ruling, it were necessary for an attorney to abandon his client’s cause. Under our' system of jurisprudence ample provision is made by which adverse rulings may be reviewed by the appellate court without resorting to the extreme measure of withdrawing from the case.

But the fact that plaintiff’s attorney declined further to participate in the trial did not justify-the direction of a verdict in favor of the defendant if, as a matter of fact, the evidence presented a jury question. The issues should have been submitted to the jury just as though plaintiff’s attorney had continued to participate in the trial. Upon appeal to the circuit court that court, upon a.review of,the record, concluded that the evidence did present a jury question, and that the direction of a verdict in favor of the de- • fendant constituted prejudicial error. The Civil Court Act, sub. 3, sec. 28, ch. 549, Laws 1909, authorizes the circuit court to reverse the judgment of the civil court and to order, the action tried in said circuit court in the same man*110ner as if originally brought there in cases of mistrial where substantial justice cannot otherwise be done. The circuit court, having come to the conclusion that the evidence presented a jury issue, reversed the judgment of the civil court and ordered a new trial in the circuit court by virtue of the power thus conferred. It is not argued here that the -circuit court was not justified in the conclusion that the evidence presented a jury question. The order of the circuit court is sought to be reversed on this appeal for the sole reason that the motion for a voluntary nonsuit was properly denied by the circuit court. Granting this contention, it does not follow, as we have seen, that the verdict was properly directed in favor of the defendant. It was the duty of the circuit court to examine the record to see whether justice had been done. Having come to the conclusion stated, the order of the circuit court was proper and cannot be disturbed on this appeal.

By the Court. — Order affirmed.