Wood v. Ramond
42 Cal. 643
Cal.
1872
Check Treatment
By the Court, Rhodes, J.:

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 *645wliat is claimed as new matter, and upon it demanded affirmative relief. Upon the hearing, the Court, on the defendants’ motion, ordered a judgment of nonsuit. The defendants, thereupon, offered to prove their allegations of new matter. The Court refused them permission to introduce evidence. This is alleged as error, and is the sole ground of the appeal.

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.