42 Cal. 643 | Cal. | 1872
The plaintiff commenced this action under the two hundred and fifty-fourth section of the Practice 0Act, to quiet his title to certain premises. The defendants, after denying most of the material allegations of the complaint, set up
A defendant, conceiving that the plaintiff' has failed to prove Ills case, may waive a motion for a nonsuit, and proceed to prove his own case, and have judgment on the merits. But if he move for a nonsuit, and the nonsuit be granted, he cannot proceed and have judgment on the merits; because, by reason of the nonsuit, the plaintiff is virtually out of Court. A nonsuit, granted on the motion of the defendant, is equivalent, in its operation on the action, to a dismissal with the consent of the defendant.
Judgment affirmed.