McDermaid v. Earnest

35 S.C.L. 192

• Court: Court of Appeals of South Carolina
• Decided: January 15, 1850
• Status: Published

Opinion

Curia, per O’Neall, J.

In this case, we think the whole matter complained of, as to ordering the case on for trial, and granting the motion for non-suit, was entirely within the discretion of the Judge below.

After the non-suit was granted, the Judge could not, without the consent of the defendaut, or his attorneys, set it aside, and restore the case to the docket; for the nonsuit is as'much a legal ending of the cause as a verdict; and in the case of The Ex’trs. of Thomas v. J & J. D. Brown, it was held that the Judge who tried the cause could not set aside the verdict and grant a new trial. The same consequence must attend a nonsuit.

That no Court has the power to set aside a non-suit, properly ordered, without the consent of the party in whose favor it is rendered, is the plain inference from McColum v. Massey and McNeill.

The motion is dismissed.

Richardson, Evans and Frost, JJ. concurred.

Wardlaw, J.

I think it material to observe that the regular term of the Court had expired, before the motion to set aside the non-suit was made.

Motion refused.