Majority — Terry J.
p. 666IMLEY v. BEARD. The appellant having submitted to or taken a non-snit against himself on his motion, cannot sustain an appeal upon the judgment thereon rendered. It would be taking an appeal from his own act. 5 Blackford's Rep., 168, 6 ib., 555; Evans v. Phillips, 4 Wheaton, 73.
Headnote
An appeal does not lie, in favor of the plaintiff in an action, from a judgment of non-suit, entered on his own motion.Appeal from the District Court of the Third Judicial District, County of Alameda.
On the trial of this cause, the Court Tbelow excluded an important witness for plaintiff on the objection of defendant to his competency. The plaintiff then moved the Court to discharge the jury, which the Court refused.
The plaintiff then moved the Court for leave to suffer a non-suit, which was granted, and the jury discharged; whereupon the plaintiff moved the Court for a new trial, which was denied, and plaintiff appealed.
Baker and Wistar for Appellant.
L. M. Crane for Respondent.
Mr. Justice Heydenfeldt concurred.
The judgment of non-suit having been entered on motion of the plaintiff, an appeal does not lie in his favor. See 5 Blackford, 168; 6 ib., 55; 4 Wheat., 73 .
Judgment affirmed.