Mr. Presiding Justice O ’Connor
delivered the opinion of the court.
Plaintiff brought an action against defendants to recover $300 claimed to be due him for commissions earned as a real estate broker. Defendants denied liability. The case was tried before the court without a jury and at the close of plaintiff’s case defendants moved for judgment in their favor which the court took under advisement. Thereupon defendant McCarthy called witnesses who testified in his behalf and after the evidence was all in, but before the court made any ruling, plaintiff moved for a nonsuit which the court allowed but which order was afterward set aside and the motion for a nonsuit denied. Thereupon the court found the issues against plaintiff and that defendants recover costs against him and for execution. Plaintiff appeals.
The question for decision is whether plaintiff, after the evidence on both sides had been heard, has the legal right to orally take a nonsuit or whether the court may, in its discretion, overrule the motion and dispose of the case on the merits.
Sections 20 and 30 of the act in relation to the municipal court of Chicago, ch. 37, pars. 375 and 385, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 108.045,108.053] provide : “ § 20. That the judges of said municipal court shall have power to adopt, in addition to or in lieu of the provisions herein contained prescribing the practice in said municipal court, or of any portion or portions of said provisions, such rules regulating the practice in said court as they may deem necessary or expedient for the proper administration of justice in said court. The adoption of said rules shall be accomplished by an order or orders signed by a majority of said judges, which order or orders, when made, shall be spread forthwith upon the records of said court and shall be printed in pamphlet or book form at the expense of the city. Amendments and changes of said rules may be made from time to time by like orders. ’ ’
Section 30 provides that if a jury trial is desired, a demand be made, etc., and the section continues, “Every person desirous of suffering a non-suit on trial shall be barred therefrom unless he do so before the jury retire from the bar, or before the court, in case the trial is by the court without a jury, states its finding.”
The Municipal Court Act was enacted in 1905 and §§20 and 30, among other sections of the act, were amended in 1907. Section 20, as then amended, authorizes the judges of the court “to adopt, in addition to or in lieu of the provisions herein contained prescribing the practice, in said municipal court or of any portion or portions of said provisions, such rules regulating the practice in said court as they may deem necessary or expedient for the proper administration of justice therein: Provided, however, that no such rule or rules so adopted shall be inconsistent with those expressly provided for by this Act.”
In 1931, § 20 was again amended and the provision of § 20 above underscored was eliminated so that §§20 and 30 are now as first above quoted.
Pursuant to the authority conferred on the judges of the municipal court in the making of rules, Rule 122 was adopted by the judges. It provides that plaintiff may at any time before the filing of the defendant’s defense or after the filing of such defense but before taking any other proceeding, by notice in writing or in open court discontinue his action or any part of it, but after the filing of the pleadings if plaintiff takes any further action he is not authorized to take a nonsuit as a matter of right, but only in the discretion of the court.
Counsel for plaintiff contend that “The Municipal Court of Chicago has no power to change substantive rights by means of rules of court”; that “The right to a non-suit is a substantive right”; and that Rule 122 is inconsistent with § 30 of the Municipal Court Act and therefore void.
Begulating by rule the method of plaintiff’s taking a nonsuit in Rule 122 of the municipal court, is in relation to “practice” as mentioned in § 20. Ptacek v. Coleman, 364 Ill. 618, 621, 625; Danoff v. Larson, 368 Ill. 519; Huber v. Van Schaack-Mutual, Inc., 368 Ill. 142, 144; Chicago Title & Trust Co. v. County of Cook, 279 Ill. App. 462.
In the Ptacek case, the Supreme Court held that § 52 of the Civil Practice Act was not applicable to the municipal court of Chicago. In the course of the opinion the court said: “Section 20 as amended in 1931 provides : ‘ That the judges of said municipal court shall have the power to adopt, in addition to or in lieu of the provisions herein contained prescribing the practice in said municipal court, or of any portion or portions of said provisions, such rules regulating the practice in said court as they may deem necessary or expedient for the proper administration of justice in said court. . . . Amendments and changes of said rules may be made from time to time by like orders.’ Prior to the amendment of 1931 section 20 carried the proviso that no such rule should be inconsistent with those expressly provided for by the act, and that the Supreme Court might, in its discretion, substitute other rules and make any order respecting the rules as it deemed proper.” (p. 625): “It is to be noticed that by the amendment of section 20 in 1931 the power to adopt rules in lieu of the practice provisions contained in the act is specifically delegated to the court. ’ ’ The court said the Municipal Court Act or any amendment thereto must be submitted to a vote of the people but this was not required of the Civil Practice Act and the court held that § 52 of the Civil Practice Act was inapplicable to the municipal court.
In the Danoff case it was held that the rule of the municipal court which sought to regulate the service of summons was void. The court there said that § 20 of the Municipal Court Act applied only to rules of practice in that court and did not permit the judges of the municipal court to regulate the manner of service of summons; that (p. 521) “Section 20 of the Municipal Court act . . . provides that the judges of that court shall have power to adopt, in addition to or in lieu of the provisions therein contained, such rules regulating the practice in said court as they may deem necessary or expedient for the proper administration of justice. It appears, therefore, that the legislature has delegated to that court the power to prescribe its own rules of practice in addition to or in lieu of the provisions made in respect thereto by the legislature. This delegation of rule-making power has been held constitutional. Hopkins v. Levandowski, 250 Ill. 372; People v. Gill, 358 id. 261; Ptacek v. Coleman, 364 id. 618.”
And in discussing the authority of the judges of the municipal court of Chicago to enact rules governing practice in that court the Supreme Court in the Huber case [368 Ill. 142, 144], said: “In Ptacek v. Coleman, 364 Ill. 618, we reaffirmed our holding that the municipal court of Chicago is a part of the local municipal government of that city established pursuant to section 34 of article 4 of the constitution as amended in 1904, and we reviewed, at length, that court’s rule-making power. We held that it had the power to adopt a different rule as to the taking of a non-suit and that this was not governed by the Civil Practice act. It is not necessary to repeat here the sections of the municipal court act set out in that decision.”
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Mr. Presiding Justice O ’Connor
delivered the opinion of the court.
Plaintiff brought an action against defendants to recover $300 claimed to be due him for commissions earned as a real estate broker. Defendants denied liability. The case was tried before the court without a jury and at the close of plaintiff’s case defendants moved for judgment in their favor which the court took under advisement. Thereupon defendant McCarthy called witnesses who testified in his behalf and after the evidence was all in, but before the court made any ruling, plaintiff moved for a nonsuit which the court allowed but which order was afterward set aside and the motion for a nonsuit denied. Thereupon the court found the issues against plaintiff and that defendants recover costs against him and for execution. Plaintiff appeals.
The question for decision is whether plaintiff, after the evidence on both sides had been heard, has the legal right to orally take a nonsuit or whether the court may, in its discretion, overrule the motion and dispose of the case on the merits.
Sections 20 and 30 of the act in relation to the municipal court of Chicago, ch. 37, pars. 375 and 385, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 108.045,108.053] provide : “ § 20. That the judges of said municipal court shall have power to adopt, in addition to or in lieu of the provisions herein contained prescribing the practice in said municipal court, or of any portion or portions of said provisions, such rules regulating the practice in said court as they may deem necessary or expedient for the proper administration of justice in said court. The adoption of said rules shall be accomplished by an order or orders signed by a majority of said judges, which order or orders, when made, shall be spread forthwith upon the records of said court and shall be printed in pamphlet or book form at the expense of the city. Amendments and changes of said rules may be made from time to time by like orders. ’ ’
Section 30 provides that if a jury trial is desired, a demand be made, etc., and the section continues, “Every person desirous of suffering a non-suit on trial shall be barred therefrom unless he do so before the jury retire from the bar, or before the court, in case the trial is by the court without a jury, states its finding.”
The Municipal Court Act was enacted in 1905 and §§20 and 30, among other sections of the act, were amended in 1907. Section 20, as then amended, authorizes the judges of the court “to adopt, in addition to or in lieu of the provisions herein contained prescribing the practice, in said municipal court or of any portion or portions of said provisions, such rules regulating the practice in said court as they may deem necessary or expedient for the proper administration of justice therein: Provided, however, that no such rule or rules so adopted shall be inconsistent with those expressly provided for by this Act.”
In 1931, § 20 was again amended and the provision of § 20 above underscored was eliminated so that §§20 and 30 are now as first above quoted.
Pursuant to the authority conferred on the judges of the municipal court in the making of rules, Rule 122 was adopted by the judges. It provides that plaintiff may at any time before the filing of the defendant’s defense or after the filing of such defense but before taking any other proceeding, by notice in writing or in open court discontinue his action or any part of it, but after the filing of the pleadings if plaintiff takes any further action he is not authorized to take a nonsuit as a matter of right, but only in the discretion of the court.
Counsel for plaintiff contend that “The Municipal Court of Chicago has no power to change substantive rights by means of rules of court”; that “The right to a non-suit is a substantive right”; and that Rule 122 is inconsistent with § 30 of the Municipal Court Act and therefore void.
Begulating by rule the method of plaintiff’s taking a nonsuit in Rule 122 of the municipal court, is in relation to “practice” as mentioned in § 20. Ptacek v. Coleman, 364 Ill. 618, 621, 625; Danoff v. Larson, 368 Ill. 519; Huber v. Van Schaack-Mutual, Inc., 368 Ill. 142, 144; Chicago Title & Trust Co. v. County of Cook, 279 Ill. App. 462.
In the Ptacek case, the Supreme Court held that § 52 of the Civil Practice Act was not applicable to the municipal court of Chicago. In the course of the opinion the court said: “Section 20 as amended in 1931 provides : ‘ That the judges of said municipal court shall have the power to adopt, in addition to or in lieu of the provisions herein contained prescribing the practice in said municipal court, or of any portion or portions of said provisions, such rules regulating the practice in said court as they may deem necessary or expedient for the proper administration of justice in said court. . . . Amendments and changes of said rules may be made from time to time by like orders.’ Prior to the amendment of 1931 section 20 carried the proviso that no such rule should be inconsistent with those expressly provided for by the act, and that the Supreme Court might, in its discretion, substitute other rules and make any order respecting the rules as it deemed proper.” (p. 625): “It is to be noticed that by the amendment of section 20 in 1931 the power to adopt rules in lieu of the practice provisions contained in the act is specifically delegated to the court. ’ ’ The court said the Municipal Court Act or any amendment thereto must be submitted to a vote of the people but this was not required of the Civil Practice Act and the court held that § 52 of the Civil Practice Act was inapplicable to the municipal court.
In the Danoff case it was held that the rule of the municipal court which sought to regulate the service of summons was void. The court there said that § 20 of the Municipal Court Act applied only to rules of practice in that court and did not permit the judges of the municipal court to regulate the manner of service of summons; that (p. 521) “Section 20 of the Municipal Court act . . . provides that the judges of that court shall have power to adopt, in addition to or in lieu of the provisions therein contained, such rules regulating the practice in said court as they may deem necessary or expedient for the proper administration of justice. It appears, therefore, that the legislature has delegated to that court the power to prescribe its own rules of practice in addition to or in lieu of the provisions made in respect thereto by the legislature. This delegation of rule-making power has been held constitutional. Hopkins v. Levandowski, 250 Ill. 372; People v. Gill, 358 id. 261; Ptacek v. Coleman, 364 id. 618.”
And in discussing the authority of the judges of the municipal court of Chicago to enact rules governing practice in that court the Supreme Court in the Huber case [368 Ill. 142, 144], said: “In Ptacek v. Coleman, 364 Ill. 618, we reaffirmed our holding that the municipal court of Chicago is a part of the local municipal government of that city established pursuant to section 34 of article 4 of the constitution as amended in 1904, and we reviewed, at length, that court’s rule-making power. We held that it had the power to adopt a different rule as to the taking of a non-suit and that this was not governed by the Civil Practice act. It is not necessary to repeat here the sections of the municipal court act set out in that decision.”
From the foregoing we are of opinion that the judges of the municipal court were, by virtue of § 20 of the Municipal Court Act, authorized to pass Rule 122, which made it discretionary with the trial judge in a case tried without a jury to allow or deny the motion of plaintiff for a nonsuit after the evidence was heard. We think the conflict between § § 20 and 30 of the Municipal Court Act is more apparent than real but in any event § 20 expressly authorizes the judges to adopt rules of practice “in addition to or in lieu of” the provisions of the act. We think the rule is valid and is just and equitable. Chicago Title & Trust Co. v. County of Cook, 279 Ill. App. 462,14 Cyc. 396; Johnson v. Bailey, 59 Fed. 670; Washburn v. Allen, 77 Me. 344; Shaw v. Boland, 15 Grey [81 Mass.] 571; United States v. Humason, 8 Fed. 71, 73.
In the Chicago Title & Trust Co. case, we held that a plaintiff, after the evidence was heard and argument of counsel was proceeding, had no right to take a non-suit unless he complied with § 52 of the Civil Practice Act. We there said that the practice of permitting plaintiff to take a nonsuit after the evidence was in ‘ ‘ often made the administration of justice a mere travesty.” And it was to remove this obvious defect that the legislature enacted § 52 of the Civil Practice Act.
In 14 Cyc. 396, it is said: “It is considered that the granting or the refusal of leave to dismiss, to discontinue, or to take a nonsuit is a matter of practice resting in the discretion of the court, which discretion is to be exercised with reference to the rights of both the parties. ’ ’
In the Johnson case, [59 Fed. 670] it was held that after the trial had actually begun the plaintiff had no absolute right to take a nonsuit but the refusal or granting of plaintiff’s motion for a nonsuit ‘ ‘ lies in the liberal discretion of the court, but will be denied when plaintiff gets all his own evidence in, and is not surprised by defendant’s evidence.” The court then discussed a great many authorities as well as the common law rule and said: “it seems little short of a perversion of justice, without any good cause shown, to hold that the plaintiff shall, at any time before verdict rendered, and when the court is in possession of the means for a just and final determination upon the merits, have the absolute power, at his own pleasure, and without showing any cause, of discontinuing his action with the right to bring a new suit for the same cause. ’ ’ The court there quotes from authorities which hold that the common law rule of England, permitting a plaintiff to take a nonsuit before verdict, had been changed by statute. That opinion was written in 1894.
In the Washburn case [77 Me. 344], the court analyzes and discusses a number of authorities on the right of plaintiff to take a nonsuit and reached the conclusion that such right was within the discretion of the trial court and said: “The reason of the rule is apparent, and needs no discussion. It is founded upon principle. If there were no place at which a party defendant could have any rights, save as to costs, till after verdict, great injustice might oftentimes result, with no power in the court to correct or restrain it. As a nonsuit is no bar to a future action for the same cause, a plaintiff, if .so disposed, might harass the opposing party, whose residence or situation might be such as to necessitate great expense in the preparation or defense of a cause, with continued litigation, and the costs recoverable would be absolutely inadequate to compensate him for either. Courts of law are instituted for the administration of justice, and in so doing must be governed by wise and salutary rules that will neither afford improper advantage to one party nor work injustice to the other. ’ ’ And to the same effect is the law in Massachusetts where the court in Shaw v. Boland, 15 Grey [81 Mass.] 571, 573 said: “And this law seems to us to be eminently just. As a nonsuit is no bar to another suit for the same cause of action, a plaintiff might harass a defendant by unlimited litigation, if the court had no authority, in any case to prevent a nonsuit.”
The judgment of the municipal court of Chicago is affirmed.
Judgment affirmed.
McSurely, J., concurs.