625, 100 S. W. 638; Groves v. Terry, 219 Mo. 595, 117 S. W. 1167; Shemwell v. McKinney, 214 Mo. 692; 114 S. W. 1083; Stark v. Zehnder, 204 Mo. 442, 102 S. W. 992; Walser v. Wear, 128 Mo. 652, 31 S. W. 37; Pennowfsky v. Coerver, 205 Mo. 135, 103 S. W. 542; Coleman v. Roberts, 214 Mo. 634, 114 S. W. 39; Southern Missouri etc. R. Co. v. Wyatt, 223 Mo. 347, 122 S. W. 688, 689. 14. Discretionary authority of courts of equity to consolidate causes.-Courts of equity are vested with discretionary powers to consolidate causes, and such discretion will not be reviewed on appeal except for abuse: Hayward v. Mason, 54 Wash. 649, 104 Pac. 141, 142. See Peterson v. Dillon, 27 Wash. 78, 67 Pac. 397. 15. Effect of consolidation.-Under the statute, consolidation a of actions merges all the actions into one suit. There may be many causes of action, but the effect is to join them all in one suit. There can be therefore but one judgment in a consolidated suit, and this judgment must settle all the issues involved. Where an order to consolidate is made, the court should require the pleadings to be reconstructed as in one suit, if necessary, and should determine what costs, if any, should be charged to each party in the original suits. If the pleadings are ordered reformed, the complaint in the consolidated suit should state all of the plaintiff's cause of action against the defendants in each of the suits consolidated, and the answer of the defendants should present all issues raised in the original suits. The complaint in the consolidated suit should be the same as if the plaintiff had joined all causes of action in one the original suits alleged in action: Handley v. Sprinkle, 31 Mont. 57, 77 Pac. 296, 3 Am. and Eng. Ann. Cas. 531. 16. Effect as to issues and pleadings. -Consolidation of causes for the purposes of trial does not change the issues in the respective cases, nor render the admissions of the pleadings ineffectual when applied to the particular case in which such admissions are made: Angeles Pressed Brick Co. v. Higgins, 8 Cal. App. 514, 97 Pac. 414, 420. Los 17. Single or separate judgments.Reference.-As to when there should be single or separate judgments on solidation of causes, see note to Hand con ley v. Sprinkle, 31 Mont. 57, 77 Pac. 296, 3 Am. and Eng. Ann. Cas. 534. 18. WITNESSES AND CONTEMPTS. -Statutes applicable to proceedings.— Civil statutes rather than criminal statutes relating to new trials apply to contempt proceedings: State v. Stevenson, 104 Iowa 50, 73 N. W. 360. 19. Jurisdiction to punish for contempt may be concurrent with or independent of the power of the courts to punish the act as an indictable offense: Fisher v. McDaniel, 9 Wyo. 457, 64 Pac. 1056, 87 Am. St. Rep. 971. 20. Judges at chambers may not, under the Kansas statute (Laws 1897, ch. 106), punish for contempt. Orders must be made by the court: In re Barnhouse, 60 Kan. 849, 58 Pac. 480. some 21. Under jurisdictions, the judge at chambers in vacation is vested with power, under certain circumstances, to punish for contempt: State v. Loud, 24 Mont. 428, 62 Pac. 497. 22. A proceeding in vacation adjudging a contempt is void under the Texas practice: Ex parte Ellis, 37 Tex. Cr. St. Rep. 539, 40 S. W. 275, 66 Am. Rep. 831. 23. The power to punish for contempt is, under the statute, generally restricted to the court in which the contempt arose: Nebraska Children's H. Soc. v. State, 57 Neb. 765, 78 N. W. 267. 24. The United States commissioner is an officer of the federal court which appoints him, and the power to punish for contempts before such commissioner therefore resides in the court, and not in the commissioner: United States v. Beavers, 125 Fed. 778. 25. The district court may punish for contempt upon its commissioner's findings: Mau v. Stoner, 12 Wyo. 478, 76 Pac. 584. 26. A writ of prohibition will lie to prevent an arrest for contempt by a commissioner of the supreme court: People v. Carrington, 5 Utah 531, 17 Pac. 735. 27. Disobedience by judge of writs of supersedeas of higher court.-Where a judge of a district court for one of the districts of Alaska wrote letters and committed wilful and overt acts which had the direct effect of interfering with and obstructing the effectual execution of writs of supersedeas on appeal issued by the circuit court of appeals, and directed to such district judge and to the court over which he presided; held, that such acts constituted a contempt of the circuit court of appeals: In re Noyes, (In re Wood, In re Geary, In re Frost), 121 Fed. 209, 57 C. C. A. 445. 28. Application to punish for contempt should be made in the case in which the contempt was committed rather than in an independent proceeding instituted in the name of the state: Ferguson v. Wheeler, 126 Iowa 111, 101 N. W. 638. 29. State as party.-Under some jurisdictions proceedings to punish for contempt are instituted in the name of the people: Hughes v. Territory (Ariz.), 85 Pac. 1058, 6 L. R. A. (N. S.) 572; Kanter v. Clerk of Circuit Court, 108 Ill. App. 287. And in the Oregon procedure, an amendment in civil contempt proceedings begun by a private party may be allowed, so as to substitute the state as party on relation of the private party interested: State v. Downing, 40 Ore. 309, 66 Pac. 917, construing Hill's Ann. Laws § 101. 30. The affidavit, where required, is jurisdictional in contempt proceedings: Herdman v. State, 54 Neb. 626, 74 N. W. 1097. See In re Coulter, 25 Wash. 526, 65 Pac. 759; Otis v. Superior Court, 148 Cal. 129, 82 Pac. 853; Back v. State, 75 Neb. 603, 106 N. W. 787. 31. An affidavit upon information and belief is insufficient: Herdman v. State, 54 Neb. 626, 74 N. W. 1097; State v. Conn, 37 Ore. 596, 62 Pac. 289. But where the facts are sufficiently definite and positively stated, the presence of matter sworn to upon information and belief is immaterial: State v. Harris, 14 N. Dak. 501, 105 N. W. 621; Davidson v. Munsey, 29 Utah 181, 80 Pac. 743. 32. But allegations upon information and belief may be sufficient to institute the proceeding for contempt and put the accused to his denial: Hughes v. Territory (Ariz.), 85 Pac. 1058, 6 L. R. A. (N. S.) 572. 33. Omission cured by answer.-Lack of an allegation in the affidavit for contempt proceedings may be cured by an admission in the answer of the accused: State v. Downing, 40 Ore. 309, 66 Pac. 917; State v. Frew, 24 W. Va. 416, 49 Am. Rep. 257. 34. Judgment must specify the contempt.-The judgment must specify the insulting language used, where such is the basis of the contempt; otherwise, it is invalid: In re Elliott, 9 Kan. App. 265, 59 Pac. 673. To designate by general terms, such as that the same was "insulting and scandalous," etc., is insufficient: In re Moxcey, 9 Kan. App. 262, 59 Pac. 672. 35. The record of conviction for contempt must show on its face that the matters charged were within the court's jurisdiction; otherwise, the judgment is invalid: Otis v. Superior Court, 148 Cal. 129, 82 Pac. 853. 36. The commitment must specify the particular circumstances of the offense: Emerson v. Huss, 127 Wis. 215, 106 N. W. 518. 37. Refusing to answer question.-Recital in commitment.-Commitment of a witness for contempt in refusing to answer a question in a proceeding in which he was called as a witness must recite the question which the witness refused to answer; otherwise, the commitment is void: Overend v. Superior Court, 131 Cal. 280, 63 Pac. 372. 38. Defenses.-The truth of published charges as to the motives of the court can not constitute a defense to a charge of criminal constructive contempt. The provisions of the constitution making the truth of the charge a defense to an action for libel do not apply to proceedings instituted to punish for contempt: People v. News-Times Pub. Co., 35 Colo. 253, 84 Pac. 912. 39. The truth or falsity of the published articles relating to pending cases. where the court may, by order, prohibit their publication, is immaterial: Hughes v. Territory (Ariz.), 85 1058, 6 L. R. A. (N. S.) 572. Pac. 40. Appealability of order. A judgment or order in contempt proceedings is usually not appealable: Ex parte Brown, 3 Ariz. 411, 77 Pac. 489; People v. Kuhlman, 118 Cal. 140, 50 Pac. 382; In re Wittmeier's Estate, 118 Cal. 255, 50 Pac. 393; Blodgett v. State, 50 Neb. 121, 69 N. W. 751; Marinan v. Baker, 12 N. W. 451, 78 Pac. 531; Borrer v. State (Tex. Cr. App.), 63 S. W. 630; Drainage Dist. No. 1 v. Costello, 53 Wash. 67, 101 Pac. 497, 498. In some jurisdictions, however, the order or judgment in such proceedings is made an appealable one: Merchant v. Pielke, 9 N. Dak. 245, 83 N. W. 18: State v. Gray, 42 Ore. 261, 70 Pac. 904, 71 Pac. 978; Hebb v. County Court, 48 W. Va. 279, 49 W. Va. 733, 37 S. E. 676. CHAPTER CXL. Nonsuit and Dismissal. .... Form No. 1177. Dismissal of action by plaintiff.... Form No. 1180. Judgment of nonsuit .... Page 1867 1867 1867 1868 1869 FORM No. 1177—Dismissal of action by plaintiff. [Title of court and cause.] The above-entitled action is hereby dismissed, inasmuch as the matters involved therein were adjudged and settled in and by the above-named court in case No. V. entitled , plaintiff, defendant; and the clerk of the above-named court is hereby authorized and directed to enter a dismissal in said action upon the records in his office. [Date.] A. B., Attorney for plaintiff. FORM No. 1178—Stipulation of dismissal on compromise. [Title of court and cause.] The above-entitled action having been fully settled and compromised, it is hereby stipulated and agreed between the parties thereto that the same may be dismissed, and the clerk of the court is hereby authorized and requested to enter judgment of dismissal therein. [Date.] A. B., Attorney for plaintiff. FORM No. 1179-Order granting motions for nonsuit, and allowing additional time in which to prepare and serve bill of exceptions. (In Castro v. Adams, 153 Cal. 382; 95 Pac. 1027.) [Title of court and cause.] In this action, the parties appearing by their respective attorneys, after evidence submitted on behalf of the plaintiff, Victor Castro, and also on behalf of Clinton C. Tripp, cross-complainant herein, and after the plaintiff and said cross-complainant and each of them rest, a motion for nonsuit is made on behalf of all the defendants, other than the said Clinton C. Tripp, upon the grounds set forth in the record of the proceedings herein; and the motion being thereupon submitted for consideration and decision, and the court having now sufficiently considered the same: It is ordered, that the said motion be and the same is hereby granted, to which rule of the court the plaintiff and cross-complainant, by their respective attorneys, except. By consent of counsel, the plaintiff and cross-complainant are hereby granted thirty days in addition to the ten days allowed by law in which to prepare, serve, and file their bill of exceptions herein. In open court, September 25, 1891. J. V. Coffey, Acting Judge. FORM No. 1180-Judgment of nonsuit. (In Booream v. Potter Hotel Co., 154 Cal. 99; 97 Pac. 65.) [Title of court and cause.] The above-entitled cause came on regularly for trial in the aboveentitled court on the 26th day of June, 1906, before Hon. Frank F. Oster, judge presiding in said court at the request of the Hon. J. W. Taggart, superior judge of said county of Santa Barbara; H. C. Booth and L. H. Roseberry appearing as counsel for the plaintiff, and Frank P. Flint, Barker & Bowen, Earl Rogers, and W. S. Day appearing as counsel for the defendant. The jury for the trial of said cause were duly impaneled and sworn, and oral and documentary testimony introduced on behalf of plaintiff in said action. Whereupon, plaintiff closed, and defendant, by its counsel, moved said court to enter a judgment of nonsuit in said action, on the ground that upon the trial the plaintiff had failed to prove a sufficient case for the jury, and stating the respects in which said. plaintiff had failed to make such proof, which grounds were specified in said motion. Whereupon, upon motion of said counsel, said court decided to and did grant such motion for nonsuit, and there was caused to be entered in the minutes of said court a minute order granting defendant's motion for nonsuit therein. Now, therefore, pursuant to law and the premises: It is hereby ordered, adjudged, and decreed, that a judgment of nonsuit be and the same is hereby entered in favor of defendant and against the plaintiff, on the ground that upon said trial the plaintiff has failed to prove a sufficient case for the jury. It is hereby further ordered, adjudged, and decreed, that defendant have and recover against plaintiff its costs of suit herein, taxed at $ Done and dated this 20th day of July, 1906. Frank F. Oster, Judge presiding. § 492. ANNOTATIONS.-Nonsuit and dismissal. 1. Inherent authority of courts to order dismissal. 2-4. Demurrer to evidence as equivalent of motion. 5. Judgment of dismissal as nonsuit. 6. Waiver of motion for nonsuit.-Washington practice. 8. Dismissal by plaintiff.-Statutes construed. 9. Rule under Oregon practice. 10. Law of the place governs on motion for nonsuit. 11. Dismissal as to one or more joint debtors. 12. When defendant waives error in denying his motion. 1. Inherent authority of courts to order dismissal. The rule is generally recognized that the courts have the power independently of the statute or a rule of court to dismiss an action whenever it appears that the plaintiff has, without sufficient excuse, failed to prosecute it to final judgment: Colorado-Eastern R. Co. v. Union Pacific R. Co., 94 Fed. 312, 36 C. C. A. 263; Ashley v. May, 5 Ark. 408; Depuy v. Shear, 29 Cal. 238; People v. Jefferds, 126 Cal. 296, 58 Pac. 704; State Sav. Bank v. Albertson, 39 Mont. 414, 102 Pac. 692, 694. 2. Demurrer to evidence as equivalent of motion.-A motion for nonsuit is tantamount to a demurrer to the evidence, or an objection that, admitting all the proved material facts to be true, said facts do not in legal effect operate in favor of the plaintiff, or, in other words, do not entitle him to the relief asked for by him: Bush v. Wood, 8 Cal. App. 647, 97 Pac. 709, 710, (negligence); Kramm v. Stockton Electric R. Co., 10 Cal. App. 171, 101 Pac. 914, 918; Goldstone v. Ice Co., 123 Cal. 625, 56 Pac. 776; Wasserman v. Sloss, 117 Cal. 425, 49 Pac. 566, 38 L. R. A. 176, 59 Am. St. Rep. 209. 3. A demurrer to the evidence is the counterpart, in some states, of a mo tion for nonsuit, and where the same is general it has been held that no question of defect of parties can be raised thereon; for to sustain a ruling upon such ground would be to bar the plaintiff's right of recovery because of а defect to which his attention had not been called and which he was given no opportunity to remedy: Larimore V. Muller, 78 Kan. 459, 96 Pac. 852, 953. 4. A demurrer to the evidence admits as true every fact which the testimony tends to prove, and every inference which may reasonably be drawn therefrom: Kinlen v. Metropolitan St. R. Co., 216 Mo. 145, 115 S. W. 523, 527. 5. Judgment of dismissal as nonsuit. -A judgment of dismissal following a failure of the plaintiff to give security for costs, where ordered to do so, is a nonsuit within the purview of the statute of limitations: Wetmore v. Church, 188 Mo. 647, 87 S. W. 954, 3 Am. and Eng. Ann. Cas. 94, (applying § 4285, Mo. Rev. St. 1899). 6. Waiver of motion for nonsuit.Washington practice. In the state of Washington, it is established law that a motion for nonsuit is waived by putting in evidence in defense: Port Townsend v. Lewis, 34 Wash. 413, 75 Pac. 982; Elmendorf v. Golden, 37 Wash. 664, 80 Pac. 264; Conine v. Olympia L. Co., |
