Holmes v. Chicago & Alton Railroad

Citations

• 94 Ill. 439

Syllabus

<p>„ „ . 1. Limitation—saving clause, when plaintiff is non-suited. The clause in section 24 of the limitation law which provides, that if the plaintiff be non-suited, and the time limited for bringing the action has expired during the pendency of the suit, a new action may be brought within one year after such judgment against the plaintiff, refers to involuntary non-suits as known to the common law, and not to voluntary non-suits authorized by our statute.</p> <p>2. Voluntary non-suit—its effect. Since 1845, a plaintiff may take a non-suit, but it most usually occurs in the progress of a trial. In either case there is a judgment against the plaintiff for costs, but the judgment is not in bar, nor will it preclude him from recovering on the same cause of action. In this respect it is precisely the same thing, in effect, as a dismissal by the plaintiff.</p> <p>3. Non-suit—difference between voluntary and involuntary. A voluntary non-suit is an abandonment of a cause of action by a plaintiff, and an agreement that a judgment for costs be entered against him; but an involuntary non-suit is where the plaintiff neglects to file his declaration or to appear when called for trial of the case, or where he gives no evidence upon which a jury can find a verdict in his favor. At common law there could be no non-suit except on the motion of the defendant.</p> <p>4. Same—involuntary, on the evidence.* Where the plaintiff gives evidence tending to establish his right to recover, the court has no right to take the evidence from the jury, or to instruct them to find one way or the other; but if the plaintiff introduces no evidence, and the defendant moves the court for a non-suit, it may be properly granted, although the plaintiff objects. So, where the plaintiff may introduce some evidence, and yet it lacks all the essential elements of proving his right to recover, and wholly fails to make a case, the defendant may move to exclude it, or move for a non-suit, and if not assented