Bidwell v. Weeks — 2 Hilt. 106

Majority

p. 106

Daniel Bidwell v. William M. Weeks.

Headnote

A plaintiff in. a district court has a right to discontinue his action at any time before the cause is finally submitted.

And it makes no difference that the defendant has interposed a counter claim, and seeks affirmative relief.

In an action for work, labor, and services, the defendant answered that the work was done under a special contract, and averred a breach of the contract, and claimed damages therefor. Pending the trial, the plaintiff asked leave to withdraw the action, and that a judgment of non-suit be entered against him. The justice refused the application, and rendered judgment for the defendant for the damages claimed.

Held, error. It was the duty of the justice to have dismissed the complaint with costs, and without prejudice to a new action.

p. 107

Appeal by plaintiff from a judgment of the First District Court. The facts are fully stated in the opinion of the court.

Capron & Lake, for the appellant.

Carpentier & Beach, for the respondent.

The plaintiff sued to recover for work and labor in painting certain roofs of buildings belonging to the defendant. The answer set up that the work was performed under an express contract, by which the plaintiff warranted that the painting would make the roofs water-tight; that it did not produce that effect; and the defendant claimed damages for the non-fulfilment of the contract. On the trial, evidence was introduced by both sides; but, before the case was finally submitted, the plaintiff stated that he should withdraw the action, and asked that a judgment of non-suit be entered against him. The justice refused, and subsequently gave judgment in favor of the defendant for the damages claimed.

In this the justice clearly erred. The plaintiff, at any time before the action was finally submitted, had a right to discontinue it; and, in such a case, it was the duty of the justice to give judgment dismissing the action with costs, and without prejudice to a new action. See District Court Act, 1 Laws 1857, p. 707, § 45; Gale v. Hoysradt, 7 Hill, 179 ; Norris v. Bleakley, 3 Abbott P. R. 107 .

Judgment reversed.