OLINGER v. LANCASTER, 143 Wn. 20 (1927)

254 P. 452

JOHN B. OLINGER et al., Appellants, v. WILLIAM D. LANCASTER et al., Respondents.

No. 20284. Department One.The Supreme Court of Washington.
March 24, 1927.

[1] DISMISSAL AND NONSUIT (2) — CONDITION OF CAUSE — FINAL ADJUDICATION. The plaintiff is not entitled to a voluntary nonsuit, in a cause tried to the court, after the cause has been submitted and the court has announced its decision either orally or in writing.

Appeal from a judgment of the superior court for Yakima county, Nichoson, J., entered August 19, 1925, upon denying plaintiffs’ motion for a voluntary nonsuit. Affirmed.

G.B. Holden, for appellants.

Rigg Venables and Nat U. Brown, for respondents.

FRENCH, J.

There is but one question involved in this case, i.e., at what time in the trial of a lawsuit does the right of the plaintiff to a voluntary nonsuit cease?

The plaintiffs were vendees in a conditional sales contract and the defendants were the vendors. The complaint alleges that the plaintiffs elected to affirm the contract, retain the property, perform all the covenants of the agreement, and asked for damages. The defendants joined issue setting forth certain affirmative defenses. A jury was empaneled, the cause proceeded to trial, and the jury disagreed. The defendant thereafter moved to dismiss the case upon its merits, and the trial judge, after taking the matter under advisement, filed a memorandum opinion in writing announcing that the case was triable to the court, and directing its dismissal upon the merits. Thereafter

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counsel for plaintiffs moved for a voluntary nonsuit, which was denied by the trial court on the ground that the motion was not timely.

[1] The only assignment of error was the refusal of the trial court to grant the voluntary nonsuit. No statement of facts was certified, filed or served.

In the absence of a statement of facts showing what transpired at the time of the trial, we must assume that the jury in this case was called in an advisory capacity only, and that the case was one triable to the court.

Voluntary nonsuits by plaintiffs, and at what stage of the proceeding the right has ceased, are questions which have been fully covered by this court in the case of Kosinski v. Hines, 110 Wn. 25, 187 P. 712. In that case, the early decisions of this court are carefully reviewed and there are many citations of authority from various courts and text-writers. The rule there announced is that a voluntary nonsuit cannot be taken after the court has announced its decision. We do not mean by this that a final judgment must have been entered, or that any formal order must have been signed, but after the matter has been submitted to the court for determination and the court has, either orally or in writing, stated its decision, the application for a voluntary nonsuit is too late.

The judgment is therefore affirmed.

MACKINTOSH, C.J., MAIN, MITCHELL, and FULLERTON, JJ., concur.

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