Gulf & Ship Island Railroad v. Williams

Citations

• 109 Miss. 549
• 68 So. 776

Syllabus

<p>1. Judgment. Nonsuit. Nature of judgment. Dismissal. Time for voluntary nonsuit. Appeal and error. Decisions appealable. Final judgment.</p> <p>Under the facts as shown in the opinion in this case the judgment entered in the court below was one of nonsuit.</p> <p>2. Dismissal and Nonsuit. Time for voluntary nonsuit.</p> <p>Under Code 1906, section 802, providing that every plaintiff desiring to suffer a nonsuit shall be barred therefrom unless he do so before the jury retires to consider its verdict and section 803', providing that plaintiff may suffer a nonsuit or dismiss a cause in vacation, where the the circuit judge on the trial of a case had announced his intention to grant a peremptory instruction for the defendant, which would have been proper under the state of the record at that time, but no written instruction, the sole method by which a judge can instruct the jury had been given, it was within the discretion of the judge to refuse to give such instruction and on plaintiffs motion to grant a nonsuit.</p> <p>3. Appeal and Error. Decisions appealable. Final judgment.</p> <p>A voluntary dismissal or nonsuit by plaintiff after defendant had moved for a peremptory instruction and the court had indicated its intention of giving such instruction but did not do so, was not a “final judgment” within Code 1906, section 33, providing that an appeal may be taken to the supreme court from any final judgment and in such case an appeal by defendant would not lie.</p>