42 Wash. 50, 84 Pac. 407; Gardner v. Porter, 45 Wash. 158, 88 Pac. 121; Cleary v. Contracting Co., 53 Wash. 254, 101 Pac. 888, 889. 7. Extent of waiver.-The fact that a defendant goes into his defense of an action after the denial of his motion for nonsuit to which he was entitled at the time the motion was interposed operates as a waiver thereof merely to the extent of allowing the plaintiff to benefit by any evidence introduced by defendant or by himself in rebuttal: Matson v. Port Townsend etc. R. Co., 9 Wash. 449, 37 Pac. 705, cited in Dryden v. Pelton-Armstrong Co., 53 Ore. 418, 101 Pac. 190, 191. (See generally as to such waiver extending only to allowing plaintiff the benefit of any evidence thereafter introduced: Dimuria v. Seattle Transfer Co., 50 Wash. 633, 97 Pac. 657, 22 L. R. A. (N. S.) 471; Bennett v. Northern Pacific E. Co., 12 Ore. 49, 6 Pac. 160; Carney v. Duniway, 35 Ore. 131, 57 Pac. 192, 58 Pac. 105; Trickey v. Clark, 50 Ore. 516, 93 Pac. 457.) by 8. Dismissal plaintiff.-Statutes construed.-In an action for damages for personal injuries, the witnesses for the defendant testified out of order awaiting the appearance of plaintiff's witnesses. Plaintiff was unable to secure the attendance of his witnesses, and the court, not being inclined to postpone the case for the purpose of obtaining their testimony, the plaintiff made a motion for a voluntary nonsuit. Defendant opposed the motion, and the court overruled the same. Defendant then moved for judgment, which was granted by the court. After motion for new trial was made and denied, judgment was entered dismissing the action, and the plaintiff appealed. Upon the appeal the court held that the plaintiff was entitled as a matter of right under the statute to an order dismissing the action, there being no set-off or counterclaim: McPherson v. Seattle Electric Co., 53 Wash. 358, 101 Pac. 1084, 1085. Ballinger's Code and Stats. § 5085 is as follows: "An action may be dismissed, or a judgment of nonsuit entered in the following cases: (1) By the plaintiff himself, at any time, either in term time or in vacation, before the jury retire to consider their verdict, unless set-off be interposed as a defense, or unless the defendant sets up a counterclaim to the specific property or thing which is the subject-matter of the action," etc. For right of plaintiff to a voluntary nonsuit under this statute. see Fiske v. Tacoma Smelting Co., 49 Wash. 514, 95 Pac. 1082; McPherson v. Seattle Electric Co., 53 Wash. 358, 101 Pac. 1084, 1085. 9. Rule under Oregon practice.-A motion for nonsuit is not waived after denial of the same by the introduction of evidence on behalf of the moving party: Dryden v. Pelton-Armstrong Co., 53 Ore. 418, 101 Pac. 190. 10. Law of the place governs on motion for nonsuit.-A motion for judgment of nonsuit is a branch of procedure, and the law of the place of trial must govern in all matters relating to this remedy: Dryden v. Pelton-Armstrong Co., 53 Ore. 418, 101 Pac. 190, 192. 11. Dismissal as to one or more joint debtors. Under the Missouri statute, one suing on a joint contract may dismiss as to one defendant, and proceed SO as to show single liability of the other: Reifschneider v. Beck (Mo. App.), 129 S. W. 232. 12. When defendant waives error in denying his motion. An error in denying a motion for nonsuit is waived where defendant did not rest his case after denial of the motion, but introduced evidence in his own behalf supplying the defects in plaintiff's proof: Lyon v. United Moderns, 148 Cal. 470, 83 Pac. 804, 113 Am. St. Rep. 291, 4 L. R. A. (N. S.) 247, 7 Am. & Eng. Ann. Cas. 672. See Scrivani v. Dondero, 128 Cal. 31, 32, 60 Pac. 463, and other cases cited in Lyon v. United Moderns, supra. CHAPTER CXLI. Findings and Judgment. § 493. Findings of fact and conclusions of law..... ...... Form No. 1181. Findings of fact and conclusions of law... Page 1871 1871 Form No. 1183. Judgment for plaintiff by the court. 1874 1875 .... Form No. 1186. Judgment by the court on verdict for the 1875 Form No. 1187. Judgment for plaintiff on verdict. (Entry by 1876 Form No. 1188. Judgment of dismissal. (Entry by clerk.). .... Form No. 1191. Order sustaining demurrer without leave to 1876 1877 ...... 1877 1878 .... Form No. 1192. Consent of plaintiff to reduction of judgment 1878 1879 1879 1880 Form No. 1196. Order of sheriff's sale of real estate under judgment. 1880 ..... Form No. 1197. Confession of judgment. 495. Confession of judgment without action... Form No. 1198. Entry of judgment confessed. (Annexed to 1881 1881 1882 § 493. FINDINGS OF FACT AND CONCLUSIONS OF LAW. FORM No. 1181-Findings of fact and conclusions of law. (In County of Glenn v. Klemmer, 153 Cal. 211; 94 Pac. 894.) [Title of court and cause.] Findings of fact. The above-entitled cause having been submitted to the court upon a stipulation by the respective parties as to the facts, and the court having considered the same, now, in accordance with said stipulation, the court finds the facts as follows: 1. That all the allegations of plaintiff's complaint on file herein are true. 2. That the claims referred to in said complaint, and each and all of them, are not for work and labor done or performed upon roads and bridges, or roads or bridges, which have been destroyed or rendered impassable by flood or fire in said road district No. 1, of the county of Glenn. Conclusions of law. From the foregoing facts the court legally concludes: That the plaintiff is entitled to a decree perpetually enjoining and restraining defendant, L. J. Klemmer, as treasurer of the said county of Glenn, from paying any and all of said claims, and that said decree also enjoin and restrain intervener, Hochheimer & Co., from enforcing or collecting said claims or any of them from the plaintiff. That plaintiff is entitled to its costs herein incurred or expended. Let a decree be entered accordingly. John F. Ellison, Judge of Superior Court. FORM No. 1182—Additional findings.-Action to quiet title, and for value of rents and profits, and for restitution. (In Gage v. Gunther, 136 Cal. 338; 68 Pac. 710; 89 Am. St. Rep. 141.)1 [Title of court and cause.] The above-entitled cause having already been heard upon and submitted for decision of the issues raised by the cross-complaint of defendant, O. H. Newman, and the answer of plaintiff thereto, and the court having heretofore made and filed its findings of fact and conclusions of law upon said issues, and it having been stipulated by all the parties to said action, in open court, upon the hearing of said cause, that the United States patent issued to said plaintiff. Matthew Gage, on April 21, 1896, for section 30, township 2 south of range 4 west of San Bernardino base and meridian, be considered as introduced in evidence, and all of said parties having, after the filing of the findings hereinabove mentioned, entered into, signed, and filed with the clerk of said court a stipulation in writing, 1 For the complaint and decree in this action, see ch. LII, forms Nos. 430, 442. whereby they stipulated and agreed that the whole of said cause, including all issues raised by the pleadings therein, both on its legal side and on its equitable side, be considered as submitted to the court upon the evidence theretofore introduced in said cause for determination and decision, without further hearing or introduction of evidence, and that the legal branch of said cause might be decided by the court sitting without a jury, and that said decision of the legal branch of said cause might be made without any findings of fact other than such as had theretofore been made and filed concerning any allegation appearing both in the answer of said defendant, O. H. Newman, the complaint of plaintiff, and in the cross-complaint of said defendant, O. H. Newman, filed with said answer; and the plaintiff having waived all claim to damages against said defendant: Now, after due deliberation, the court finds the following facts: 1. That on the 21st day of April, 1896, the plaintiff, Matthew Gage, was, and ever since has been, and now is, the absolute owner of, seized in fee of, and entitled to the possession of, that certain tract and tracts of land situated in the county of Riverside, and state of California, and described as follows, to wit: [Here follows description.] That it is not true that the title under which the plaintiff claims said land is of no validity, or that whatever paper title said plaintiff may have in said land is held in trust for the defendant, O. H. Newman. 2. That plaintiff's claim to said land is based upon a United States patent issued to said plaintiff on the 21st day of April, 1896, and that said patent was issued upon a desert-land entry made by said plaintiff on the 1st day of March, 1882, and that said section 30 was on said 1st day of March, 1882, and ever since has been, an even section of land within the limits of a grant of land made by Congress to the Southern Pacific Railroad Company; but that said section 30 was nevertheless subject to entry and sale under the desert-land law when said plaintiff made his application to purchase the same under his desert-land application. 3. That the said patent issued as aforesaid to said plaintiff was not issued without authority of law, and was not null and void; but that said patent was lawfully issued, and was a valid conveyance of said land to the plaintiff. 4. That while the plaintiff was and is so the absolute owner of said premises, and entitled to the possession thereof, the defendant, O. H. Newman, has entered into possession of said premises without right, title, or license from the plaintiff, and wrongfully withholds the possession of the same from the plaintiff, and still continues to withhold possession from plaintiff. Conclusions of Law. As conclusions of law from the foregoing facts the court finds: That the plaintiff is entitled to judgment against the defendant, O. H. Newman, for the recovery of possession of the real property described in the complaint of said plaintiff, and that a writ of possession issue from this court removing said defendant, O. H. Newman, from said land and restoring plaintiff to the possession thereof. Let judgment be entered in accordance with these findings, and with the findings heretofore made and filed herein. Dated July 17, 1889. J. S. Noyes, Judge. § 494. JUDGMENTS. FORM No. 1183-Judgment for plaintiff by the court. 19 [Title of court and cause.] day of This cause came on regularly for trial, on the appearing as counsel for the plaintiff, and for the defendant. A trial by jury having been expressly waived by the counsel for the respective parties, the cause was tried before the court sitting without a jury; whereupon witnesses on the part of the plaintiff and defendant were sworn and examined, and, the evidence being closed, the cause was submitted to the court for consideration and decision, and, after due deliberation thereon, the court delivers and files its findings and decision in writing, and orders that judgment be entered in accordance therewith. Wherefore, by reason of the law and the findings and decision aforesaid: It is ordered, adjudged, and decreed, that the plaintiff, have and recover of and from the defendant, $ , do the sum of , together with plaintiff's costs and disbursements incurred in this action, amounting to the sum of $ Judgment rendered this day of 19 S. T., Judge. |