85 P. 972 | Idaho | 1906
Lead Opinion
For a statement of the entire history of this case and some of the facts important here, see Shields v. Johnson, 10 Idaho, 476, 79 Pac. 391; also, 10 Idaho, 454, 79 Pac. 394. It will be observed by a reference to these two decisions that the parties to this litigation have not been idle so far as the courts are concerned since their first business acquaintance out of which the cause now before us has ripened. It is correctly stated by learned counsel for appellants that the first action was commenced in the district court of Latah county on the twenty-fourth day of April, 1904, by respondent
The sixth allegation is: “That on or about July 11, 1904, without plaintiff’s knowledge or consent, the said defendants entered upon said premises and cut down about forty acres of said grass sown as above alleged, by this plaintiff, and known as Bromus Innermis. That all the acts and things done by the said defendants as above set forth were done without the knowledge or consent of this plaintiff, and by said acts upon the part of the said defendants this plaintiff has been damaged in the sum of $2,000.” Then follows
Appellants applied to the court for an order dissolving the temporary restraining order issued by the court on the complaint and prayer of plaintiff. The application was denied and an appeal from the order was prosecuted in this court and the action of the lower court affirmed. (Shields v. Johnson, 10 Idaho, 454, 79 Pac. 394.)
In May, 1905, the question of damages was tried and the jury returned a verdict in.favor of the plaintiff for the sum of $275, for which amount judgment was entered in favor of the plaintiff. At the close of plaintiff’s evidence appellant’s counsel made the following motion: “Comes noiv the defendant and moves the court to peremptorily instruct the jury to bring in a verdict for the defendant, or to order a nonsuit upon the ground that the evidence of the plaintiff himself shows that he is estopped from maintaining this action.” This motion was overruled, which ruling is assigned as error, and the only assignment in the record. Counsel for appellants in their brief say: “Can a party bring an action to quiet title with one of his causes of action alleging $500 damages for trespass and wrongful holding, and then before the action is tried dismiss his right to damages and immediately turn round and file another action claiming damages and injunction?” An answer to this question disposes of this case, as it is the only question brought here for consideration, unless the contention of counsel for respondent that when appellant introduced his evidence after the court had denied their motion for nonsuit, they thereby waived their motion; or that the motion of appellants is too indefinite and uncertain, not specifying wherein and by what acts the respondent was estopped from maintaining his action, shall be
From the record in this case the important and controlling question is dependent on the force and effect of respondent’s contention that “when appellant introduced his evidence after his motion for nonsuit was overruled, he waived all his statutory rights given him on such motion.”
Section 4354 says: “An action may be dismissed or a judgment of nonsuit entered in the following cases: .... Subdivision 5. By the court, upon motion of the defendant, when, upon the trial, the plaintiff fails to prove a sufficient case for the jury.”
In Chamberlain v. Woodin, 2 Idaho, 642, 23 Pac. 177, Mr. Justice Beatty, speaking for the court, said: “Motion for non-suit on account of insufficiency of evidence is waived by the subsequent introduction of testimony by the mover. Did
Section 242, Compiled Statutes of Montana, is in the same language as our subdivision 5, section 4354. This section was construed by the supreme court of Montana and thereafter by the supreme court of the United States in Boyk v. Gassert, 149 U. S. 17, 37 L. ed. 631, 13 Sup. Ct. Rep. 738. Mr. Justice Brown delivered the opinion, and at page 23 he says: “The practice of Montana (Comp. Stats., sec. 242) permits a judgment of nonsuit to be entered ‘by the court upon motion of the defendant when, upon the trial the plaintiff fails to prove a sufficient case for the jury.’ Without going into the question whether the motion was properly made in this case, it is sufficient to say that defendant waived it by putting in his testimony. A defendant has an undoubted right to stand upon his motion for a nonsuit, and have his writ of error, if it be refused; but he has no right to insist upon his exception after having subsequently put in his testimony and made his case upon the merits, since the court and jury have the right to consider the whole case as made by the testimony. It not infrequently happens that the defendant himself, by his own evidence, supplies the missing link, and if not, he may move to take the case from the jury upon the conclusion of the entire evidence.” In addition to the cases
Again, the record does not inform us what evidence was submitted to the jury by defendants nor what was shown by plaintiff on rebuttal; hence not a complete record of all the proceedings or all the facts submitted to the jury upon which they returned a verdict in favor of plaintiff. If the defendant had refused to offer any evidence after his motion for nonsuit was denied, the record would be complete; but as stated by Mr. Justice Brown above quoted, the defendant by his own evidence may have “supplied the missing link,” and thus aided the jury in finding against him. The rule that defendant may introduce evidence after his motion for nonsuit has been denied, and, after the introduction of any rebuttal evidence offered by plaintiff, renew his motion and bring the entire record üp for review, has support in the authorities above cited. If we should review the evidence disclosed by this record with a view of reversing the judgment, it would not only be unfair to the jury but the trial court as well, as they had the benefit of all the evidence in the case, and we only have that part of it offered by the plaintiff in chief. The judgment is affirmed with costs to respondent.
Rehearing
ON petition por rehearing.
A petition for a rehearing has been filed in this ease, and after a careful examination of the same, the