Schulter's Administrator v. Bockwinkle's Administrator

Gamble, Judge,

delivered the opinion of the court.

In this case, the plaintiff, conceiving that the answer of the defendant admitted the material facts stated in the petition, and that he was entitled to a decree, moved for such decree, but the court overruled the motion. The plaintiff then came voluntarily and suffered a nonsuit, and having moved to set it aside, brings his case here by writ of error.

1. This court has entertained jurisdiction in cases where the Circuit Courts have, upon the trial of causes, decided questions which covered the plaintiff’s case and obliged him to submit to a nonsuit. But when parties voluntarily suffer nonsuits, we do not interfere. If it was allowed to plaintiffs to take nonsuits on every motion they might make, and which the court might overrule, and then bring the case here to test the correctness of the decision upon the motion, this court would be filled with cases, in all different stages of progress, and every question of practice might be brought here to be settled before the merits of the *649 case were reached. Although the court refused to give judgment on the answer, on the motion made by the plaintiff, there was still to be a hearing of the cause, and until that hearing, there could be no decision by which the plaintiff was obliged to take a nonsuit.

2. The defendant, in his answer, insisted that there were not proper parties made in the cause. The agreement between Schulter and Rockwinkle, stated in the petition, was, that Rockwinkle, for a certain consideration, was to assign to Schulter a term of ninety-nine years in a lot in Carondelet, which Bockwinkle held by assignment from the original lessee. The petition alleges that the consideration was paid, and that possession was taken and held under the agreement, and says that the terms of the agreement were reduced to writing, but does not allege that any memorandum of the agreement was signed, and the paper filed with the petition does not purport to be signed by the parties. Whether Bockwinkle left a widow and children does not appear. If he left a widow, she was entitled prima facie to dower in the property as real estate, (R. C. '430, sec. 1,) and unless the case were one which came within sections 36 and 42 of art. 3 of the administration act, the proceeding should have been against all parties having an interest in the property, under the general law, and not against the administrator alone. The special statutory proceeding for the specific execution of agreements against the administrators of vendors, is only allowed where'the agreements are in writing. Sec. 36. This case does not come within that statute. The Circuit Court might then, with great propriety, decline giving judgment for the plaintiff on his motion, and if he desired to have Ms case decided upon the petition and answer, he should have waited until it came up regularlysfor hearing, and not voluntarily have suffered a nonsuit. The judgment is affirmed, with the concurrence of the other judges.