The courts of the United States have no authority to order a
peremptory nonsuit against the will of the plaintiff on the trial
of a cause before a jury. The plaintiff might agree to a nonsuit,
but if he does not so choose, the court cannot compel him to submit
to it.
When the state of the record did not show a judgment of nonsuit
to have been entered, although the bill of exceptions states the
fact, the plaintiff may apply for a certiorari to bring up a
perfect record or dismiss the writ of error and proceed
de
novo.
An action of ejectment was instituted in the Circuit Court of
the United States for the District of Georgia for the recovery of
287 1/2 acres of land, in which the plaintiffs claimed title as
follows: a grant from the State of Georgia to Samuel Alexander and
a deed from John Cessna, styling himself "Sheriff of Greene County
in the State of Georgia," purporting to convey to Buckner Harris by
virtue of a sale under an execution against Herod Gibbs,
"two hundred and eighty-seven and a half acres of land in said
county on Little Beaver Dam, on the waters of Richland Creek, and
bounded on Academy lands, and land belonging to William Alexander,
which land was formerly the property of Samuel Alexander,"
a deed from Buckner Harris to Ezekiel E. Park for a tract of
land
"containing two hundred and eighty-seven and a half acres in the
County of Greene and State of Georgia on the Little Beaver Dam of
Richland Creek, being an equal half of the double bounty of land
granted to Samuel Alexander adjoining Academy lands."
The plaintiff then introduced a witness who testified that
"Ezekiel Park was in possession of a tract of land lying in Greene
County, usually called Park's Old Mill Tract, on Beaver Dam Creek,
for about twenty years." He then produced a deed from Ezekiel E.
Park to John A. Elmore, for a tract of land
"in the County of Greene and State of Georgia on the Little
Beaver Dam Creek, or Fork of Richland Creek, being one equal half
of a double bounty tract, originally granted to Samuel Alexander,
adjoining lands belonging to the university, being the same
originally sold and conveyed to Herod Gibbs by the grantee on 14
March, 1790."
He then exhibited a deposition of the county surveyor stating
that he had made a resurvey of the premises in dispute agreeably to
a plot annexed to his deposition, which corresponded in its
outlines with that annexed to the original grant, "completely
Page 26 U. S. 470
covering the premises in dispute," which he designated on the
plat.
The plaintiff then called a witness who testified that W. A.
Grymes was in possession of the premises at the commencement of the
action, and then closed his testimony.
The defendant's counsel thereupon moved for a nonsuit on the
following grounds:
1st. Because the plaintiff had failed to make out his title by
the documentary evidence on which he rested his case.
2d. Because there was no sufficient evidence of possession to
give a title under and by force of the statute of limitations of
Georgia.
The circuit court ordered a nonsuit to be entered against the
consent of the plaintiff, and a writ of error was prosecuted by him
and the cause brought before this Court.
Page 26 U. S. 471
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
The Court has had this case under its consideration, and is of
opinion that the circuit court had no authority to order a
peremptory nonsuit against the will of the plaintiff. He had
Page 26 U. S. 472
a right by law to a trial by a jury and to have had the case
submitted to it. He might agree to a nonsuit, but if he did not so
choose, the court could not compel him to submit to it. But the
state of the record does not enable this Court to render a final
judgment, because the record is defective in not showing a judgment
of nonsuit entered in the circuit court. Although the bill of
exceptions states that fact yet the record does not contain the
judgment itself.
The plaintiff may therefore apply for a certiorari, to bring up
a perfect record or dismiss the present writ of error and proceed
anew, as his counsel may think best for the interest of their
client.
MR. JUSTICE JOHNSON dissenting.
The only question of any importance in this cause is whether a
circuit court can in any case order a plaintiff to be nonsuited. I
ordered the plaintiff below to be nonsuited because the evidence
was so inadequate to maintain his suit, but had the jury found for
him, I should have set aside the verdict and ordered a new trial.
The practice of the court from which this cause comes up is this:
when the plaintiff has closed his evidence, the defendant is at
liberty to move for a nonsuit or proceed with his testimony. If he
introduces evidence, it is too late to move for a nonsuit, and the
question always to be examined is whether upon the evidence
introduced by the plaintiff, admitting it to be true, the jury can
find a verdict for him. So that it is in fact a substitute for a
demurrer to evidence or for a motion for instruction that the
plaintiff cannot recover upon the case made out by him in
evidence.
There are several reasons why I must maintain that the courts of
the Sixth Circuit have a right to exercise the power to order a
nonsuit even against the will of the plaintiff, and why it would be
wise in all our circuits to introduce the same practice.
It happens, unfortunately for the defendant in error here, that
a majority of the judges of this Court have pursued a different
practice in their circuits, but this, I must insist, is no
sufficient reason for subverting otherwise than by rule the
practice of other states in which this right has been recognized in
the administration of justice coevally with the existence of their
courts. Such has been the case in the states of which the Sixth
Circuit consists, and the acts of 1789 and 1792 have adopted into
the courts of the United States of the respective circuits not only
the forms of process, but the "modes of proceeding" in suits known
to the states respectively. That this comes under the denomination
of a mode of proceeding, or in other words, an established practice
of the state composing the Sixth Circuit, appears to me
incontrovertible.
Page 26 U. S. 473
By what right then can this Court reverse a judgment of that
circuit founded in a practice thus sanctioned by law? It does seem
to me that the defendant below has a right in this judgment, vested
by express statute law, and ought not to be put to the expense of
this reversal. For what purpose is power given to this Court to
alter the practice of the circuits by such regulations as they may
deem expedient if such practice is not to be held legal until
altered by a rule of this Court?
This Court surely does not mean to decide that such was not the
received practice of that circuit; this would be a decision in the
teeth of positive fact, and if the purport of the decision be that
it is an illegal practice, the immemorial practice itself and the
process acts of the United States furnish an express negative to
such a decision.
The idea seems to be that it is a practice inconsistent with the
relation in which our circuit courts stand to this Court -- that
ours is not a
nisi prius system or something to that
effect. What then? This Court can alter the practice by a rule, but
to overturn a judgment that has already been rendered under such a
practice, I must respectfully contend, approaches very near to
ex post facto legislation, not adjudication, the province
of which is to operate only upon existing laws. But it is not a
practice appropriate exclusively to a
nisi prius system,
as is proved by this that writs of error are sued out continually
in England upon judgments on nonsuits (
see the cases cited
in 1 Archb.Practice 229-30) and, though it had been, the states
were at liberty to adopt it into their practice, although the
nisi prius system be unknown to them. That they had
adopted it is conclusive against this assumed incompatibility. And
in practice it subserves the purposes of justice under our system,
as effectually as a bill of exceptions or a demurrer to evidence,
and in several respects much better. It saves the practitioner from
the weight of responsibility, which often results from being
compelled to elect between a voluntary nonsuit and a demurrer to
evidence or a bill of exceptions, which may terminate fatally to
his client and it not unfrequently saves his client from the fatal
effects of negligence and misapprehension either of himself or his
attorney, or from surprise.
In point of convenience and expedition in the administration of
justice, I presume there cannot be two opinions. On this point, as
far as
exemplum docet, we may cite Great Britain,
Massachusetts, and New York with some confidence against
Pennsylvania, Maryland, and Virginia.
But it is contended that in England the plaintiff is not
nonsuited if he insists on answering when called. If the fact be
admitted, what then? England is not altogether absolute in
dictating to the courts of the United States, and if those of
the
Page 26 U. S. 474
states of the Sixth Circuit have asserted some independence in
their rules of practice on this subject, I presume their right was
unquestionable to do so.
But I want no other authority than the courts of Great Britain
to justify the practice of the Sixth Circuit in this behalf. From
the earliest period, we find the English courts in the exercise of
this power, and whoever will examine the cases collected in Mr.
Morgan's Treatise on the doctrine of new trials, 3 vol. Essays,
will find what a very wide range has been taken by those courts in
the application of that practice. Nor have the more modern cases
manifested any inclination to retrace their steps. Its salutary
effects are universally felt, and perhaps contribute as largely as
any other cause to the rapid progress of their courts in disposing
of their dockets. If there exists any case prior to that of
Macbeth v. Haldeman, 1 Term 172, in which the right of the
plaintiff to refuse to be nonsuited was recognized, I cannot
recollect it, since in that case it would seem that in ordinary
cases the right is recognized. But there is abundant proof that the
British courts do assert the power to control the exercise of that
right, by the plaintiff when they think proper. In the cases of
change of venue on motion of plaintiffs, 3 Black. 1031, the right
is disputed on the assumed ground that he undertakes to prove some
material fact. Now where can be the objection to applying the same
reason to every case that goes to a jury? Does not a plaintiff in
fact undertake the same thing whenever he troubles a court with his
suit and has a jury sworn to try his cause upon evidence? He is no
longer subjected to amercement if he fails to recover, and the
right to nonsuit him where he fails to produce evidence that will
justify a verdict is but a reasonable substitute for the absolute
penalty to which he was once subjected.
But it is contended that an absurdity is produced and an
acknowledged right violated. Yet the alternative exhibits a more
direct and obvious absurdity, since in the case of
Macbeth v.
Haldeman and in every case of the kind, the court asserts a
positive control over the consciences of the jury by telling it "it
is bound to find for the defendant." And the greater absurdity must
henceforward be incurred of swearing a jury in a cause and
requiring a verdict at the caprice of a plaintiff who produces not
a tittle of evidence to maintain his issue. Nor is any right of the
plaintiff taken from him if his rights be regarded in their just
extent. He cannot claim a verdict of the jury if he does not
produce evidence from submitting and it is only in that case that
he is precluded from submitting his case to their consciences. When
we consider what were the ancient penalties for a false verdict
before they were superseded by the introduction of new trials, it
must appear just
Page 26 U. S. 475
and reasonable that the plaintiff should rather be exposed to
the necessity of bringing a new suit or moving for a new trial than
that the jury should be subjected to attaint at his will. And on
the subject of fiction and legal absurdity, it is certainly too
late at this day for our courts of justice to be very fastidious on
a consideration which has been so thoroughly set at nought by the
action of ejectment, fine, and recovery, and sundry other matters
of the kind to which they have resorted for the purposes of
substantial justice and public convenience.
I must submit, I suppose, but I cannot do it without protesting
against the right of forcing upon my circuit the practice of other
circuits in this mode.
By a rule of this Court, it is unquestionably in the power of
the Court to do it. But until then, I can never know what is the
practice of my own circuit until I come here to learn it.