97 Wash. 172 | Wash. | 1917
This is an original application in this court for a writ of mandamus, directed to the Honorable B. M. Webster, one of the judges of the superior court for Spokane county.
The facts, as shown by the admitted portions of the petition and the reply thereto, are these: On the 22d day of March, 1907, there came on for trial before Judge Webster and a jury an action in which Sarah Enright was plaintiff and Henry Madigan and Ada Stone Bringgold were defendants. The complaint in that action alleged a conspiracy on the part of the defendants to slander the plaintiff. After the plaintiff had closed her case in chief, the legal sufficiency of the evidence as to the defendant Mrs. Bringgold was challenged, and the court was moved to discharge the jury and enter a judgment in her favor for the reason that there was no evidence from which the jury could find that she had been a party to the conspiracy charged. After argument, this motion was sustained by the court. Thereafter the cause proceeded against Madigan, the other defendant, and during a subsequent period in the trial, it was brought to the attention of the trial judge that there had been certain misconduct on the part of one of the jurors. For this reason, the procedure of the trial was arrested and the jury discharged. A few days after the discharge of the jury, the court was requested to enter a judgment dismissing the action as to Mrs. Bring-gold, which request was denied because, as recited in the return, “there was a mistrial of said cause, and on account thereof respondent as judge of said court has refused to enter any judgment of dismissal as to said defendant Ada Stone Bring-gold.” The present application is to require the trial judge to sign the judgment dismissing the action as to Mrs. Bring-gold, and presents the question whether, as a matter of law, under the facts stated, she was entitled to such judgment.
After the challenge to the sufficiency of the evidence has been sustained, even though no formal judgment has been entered from which an appeal could be prosecuted, the plaintiff cannot thereafter take a voluntary nonsuit. In Dunkle v. Spokane Falls & N. R. Co., 20 Wash. 254, 55 Pac. 51, the plaintiff having introduced his evidence and rested, the defendant submitted a motion to discharge the jury and for judgment. After argument, the motion was granted, and thereupon the plaintiff moved to dismiss the action without prejudice, which, in effect, was a motion for a voluntary non-suit. It was there said:
“We are agreed that at any time prior to an adverse decision upon such a motion, the plaintiff has the right to dismiss his action, but, when he elects to submit the motion for judgment to the determination of the court, he must take his chances upon such determination, and a subsequent application to dismiss comes too late.” ■
A writ of mandamus will issue from this court to the superior court to compel the latter to perform a legal duty when there is not a plain, speedy and adequate remedy in the course of law. Rem. Code, §§ 1014 and 1015; State ex rel. Gabe v. Main, 66 Wash. 881, 119 Pac. 844.
In the present case, the trial judge, as shown by his return, refused to sign the judgment of dismissál as to Mrs. Bring-gold because the misconduct of a juror had resulted in a mistrial, apparently entertaining the view that, there being such a mistrial, the action must be retried as against both of the defendants. The cause as to Mrs. Bringgold was submitted to the court upon the merits on an issue of law when
to the jury. To this class belongs the case of Dossett v. St. Paul & Tacoma Lumber Co., 28 Wash. 618, 69 Pac. 9. There, a motion for nonsuit was made and overruled. The trial proceeded by the introduction of the testimony of.the defendant, and was submitted to the jury and resulted in a mistrial on account of the inability of the jury to arrive at a verdict. The appeal was there taken from the order directing a retrial, and it was there held that such an order was not the granting of a new trial and, therefore, not appealable, but the holding in that case would not support a denial of the writ in this case. Here, as already stated, Mrs. Bringgold, by her challenge to the evidence, presented to the court a vital issue of the law which was decided in her favor, and the only reason that the court declines to enter the formal judgment is because of a misapprehension as to the legal effect of the subsequent mistrial as against the other defendant. It is undoubtedly the rule that the law does not favor the appeal of cases by piecemeal, but this rule is not applicable to the facts in this case.
The writ will issue.
Ellis, C. J., Holcomb, and Parker, JJ., concur.