194 P. 354 | Idaho | 1920
This is an appeal from a judgment in favor of plaintiff upon an action to recover balance due upon account.
The first assignment is that the court erred in allowing the jury to take the complaint, answer and bill of particulars to the jury-room, and in instructing the jury that it might refer to them and each of them for such information as would assist it in arriving at a proper verdict.
C. S., sec. 6852, provides: “Upon retiring for deliberation the jury may take with them all papers which have been received as evidence in the cause, except depositions, or copies of such papers as ought not, in the opinion of the court, to be taken from the person having them in possession, and they may also take with them notes of the testimony or other proceedings on the trial, taken by themselves or any of them, but none taken by any other person.”
This statute does not contemplate that the pleadings shall be delivered to the jury upon retiring for deliberation, and the practice of so doing is not to be commended. The rule, however, is that it is not reversible error to permit the jury to take with them the pleadings upon retiring for deliberation unless prejudice be shown. (Powley v. Swensen, 146 Cal. 471, 80 Pac. 722.)
In this case, after reviewing many authorities from different jurisdictions, it is said: “We do not think the practice
In the case at bar no prejudice is pointed out, and the pleadings are of such a character that it would be difficult to presume that any injury could result. The jury was elsewhere instructed that its verdict must be based upon the evidence, and it could not have understood from the instructions as a whole that it had a right to use the pleadings and bill of particulars as a basis for its verdict.
It is next contended that the court erred in striking from appellant’s answer the plea of res judicata. It appears that upon a former trial of the same cause of action, the following judgment was entered:
“At the conclusion of the taking of evidence on behalf of the plaintiff, the defendant interposed a motion that the plaintiff be nonsuited on the ground that he has failed to make out a case sufficient to entitle him to go to the jury, and after argument of counsel, the court being fully advised in the premises ordered that said motion be granted.
“It is therefore ordered, adjudged and decreed that the said plaintiff 'be nonsuited and his complaint and action herein dismissed And the defendant have and recover his costs herein fixed at $162.25.”
In Berlin Machine Works v. Dehlbom, Lumber Co., 29 Ida. 494, 160 Pac. 746, it is said: “It is a well-established rule that a judgment of nonsuit does not terminate the rights of the parties, and is no bar to a new action.”
It is contended that the judgment above quoted, although called a judgment of nonsuit, was a judgment upon the merits. Whether a judgment be one of nonsuit or one finally determining the rights of the parties so as to become a bar to a future action is to be determined by the contents of the judgment itself. (Nance v. Valentine, 99 Wash. 323, 169 Pac. 862; Landry v. Seattle, P. A. & W. Ry. Co., 100
The judgment we are considering is clearly one of nonsuit, granted upon motion of defendant because upon the trial the plaintiff failed to prove a sufficient case for the jury. It was not a final determination of the rights of the parties, and not a bar to another action.
The judgment is affirmed. Costs awarded to respondent.