Opinion filed June 5, 1959.
1. DISMISSAL AND NONSUIT.
Right to take a nonsuit is regulated by statute. T.C.A. secs. 20-1311 to 20-1313.
Where plaintiff brought action before justice of peace to recover damages sustained in automobile accident and during course of proceedings and before all proof was in, magistrate wrote down on back of warrant a judgment for $200 in favor of plaintiff who subsequently requested the suit be dismissed because it had developed that defendant was conditional vendee of automobile sought to be attached, and thereafter an order of dismissal was entered on magistrate's docket, entry of judgment for $200 was a final judgment barring subsequent action in circuit court for damages arising out of the same accident. T.C.A. secs. 20-1311 to 20-1313. FROM LAKE
NEWTON P. ALLEN, ARMSTRONG, McCADDEN, ALLEN, BRADEN GOODMAN, Memphis, WILLIAM B. BLACK, Tiptonville, for appellant.
MILES MILES, Union City, FRED ROBERTSON, Tiptonville, for appellees.
Action for damages as result of automobile accident. The Circuit Court, Lake County, E.A. Morris, Circuit Judge, entered judgment for plaintiff and defendant appealed and Supreme Court granted certiorari. The Supreme Court held that where plaintiff had brought action before justice of the peace for damages resulting from automobile accident and before all proof was in, magistrate wrote down on back of warrant judgment for $200 in favor of plaintiff, and plaintiff then stated that he wanted to dismiss suit and thereafter an order of dismissal was entered on magistrate's docket, such $200 damages adjudication was a final judgment barring subsequent circuit court suit for same damages.
The sole question involved is whether or not the proceedings before the Justice of the Peace constituted a former adjudication of this same case barring the present action of the plaintiff, Albert Vaughn. The Circuit Judge overruled the plea of former adjudication and the case was tried before a jury resulting in a verdict for this plaintiff, Vaughn, and against the defendant below, Staggs, for $2,500.
The Court of Appeals reversed and dismissed Vaughn's suit and held that the trial judge should have sustained Stagg's plea of former adjudication.
The plaintiff below, Vaughn, was involved in an automobile accident with the defendant, Staggs, in Lake County, on December 22, 1956. On the same day Vaughn brought a suit in the Court of Wilson Hayes, Justice of the Peace, for property damage and attempted to attach defendant's car. During the course of the proceedings and before all the proof was in, the magistrate wrote down on the back of the warrant, a judgment for $200 in favor of the plaintiff. It developed in the proof that the defendant was the conditional vendee of the car, and that it could not be reached in the magistrate's hearing, so the plaintiff, Vaughn, told the magistrate that he wanted to dismiss the suit. Therefore an order of dismissal was entered on the magistrate's docket that same day and the cost paid by the plaintiff.
It appears that neither party was represented by counsel before the magistrate.
Following this on January 22, 1957, the plaintiff filed his action for damages in the Circuit Court of Lake County for personal injuries of $9,999.99 and property damages $300. We have granted certiorari.
The right to take a non-suit is regulated by Statute; the pertinent statutory provisions applicable being set out in Sections 20-1311, 20-1312, 20-1313, T.C.A., which are as follows:
"20-1311. Nonsuit before retirement of jury. — The plaintiff may, at any time before the jury retires, take a nonsuit or dismiss his action as to any one or more defendants, but if the defendant has plead a setoff or counterclaim, the latter may elect to proceed on such counterclaim in the capacity of a plaintiff."
"20-1312. Withdrawal of counterclaim. — The defendant may, in like manner, withdraw his counterclaim at any time before the jury retires to consider of their verdict."
"20-1313. Dismissal in nonjury trials. — If the trial is by the court instead of the jury, the nonsuit or dismissal provided for in secs. 20-1311 and 20-1312 shall be made before the cause is finally submitted to the court, and not afterwards."
Section 20-1313, T.C.A., is the section applicable to the facts involved in the present case. It is insisted by the plaintiff below, Vaughn, that a non-suit may be taken at anytime before the jury retires, or before the matter is finally submitted to the court. Nashville, C. St. L.R. Co. v. Sansom, 113 Tenn. 683, 84 S.W. 615.
It has also been held that a plaintiff may take a non-suit even after a motion for a directed verdict has been sustained. Darby v. Pigeon Thomas Iron Co., 144 Tenn. 298, 232 S.W. 75.
It is also insisted by the plaintiff below, petitioner here, that the Sections of the Code above set out have reference to proceedings in the Circuit Court and not before a Magistrate.
It is true that proceedings before a Magistrate are informal but in the present case it appears that the magistrate had already entered judgment for the plaintiff in the sum of $200 and thereupon the defendant left the court room of the magistrate.
We are of the opinion that this was a final judgment even though the docket of the magistrate shows that the plaintiff there took a non-suit.
It therefore follows that the Circuit Judge should have sustained the plea of res adjudicata and that the Court of Appeals was correct in reversing the judgment of the trial judge for failure to sustain this plea.
This being the case the judgment of the Court of Appeals is affirmed.