§ 1486. Nonsuit, nature of.—A motion for nonsuit is in effect a demurrer to the evidence." It is proper when plaintiff's evidence does not warrant a verdict in his favor, and may be made at any time when it is apparent from his own testimony that he cannot recover." A motion for nonsuit should be granted if the evidence at the close of plaintiff's case is not sufficient for submission to the jury, as where testimony in a personal injury case leaves the cause of the accident speculative."

It is not proper to grant a nonsuit where there were no grounds stated in support of the motion or if the defect relied upon is capable of correction.10 A general objection that plaintiff has failed to prove his case is insufficient as a statement." In California, there is no such thing as a nonsuit in the justice court.12

§ 1487. Motion.-The plaintiff is entitled to a motion specifying the ground on which the nonsuit is asked, so that he may by amendment, or further proof, supply the suggested defect.13 Ordinarily, a motion for a nonsuit will not be entertained until all plaintiff's evidence has been introduced;1 but where on his own testimony a judgment cannot be rendered for plaintiff, such a motion may

be made and granted before he rests his case.15 The trial court may erroneously refuse a motion for nonsuit at the close of plaintiff's testimony, and thereafter sustain the same challenge at the close of all the testimony.18 The motion will be overruled where no grounds are stated in support of it." A motion on the ground that plaintiff's evidence does not show a prima facie cause is too general,1 but a motion on the ground that plaintiff had not produced sufficient evidence corresponding to the ground authorized by the code provision has been held to be sufficient without specifying the particular insufficiency.19

18

§ 1488. Nonsuit, when granted. In an action for failure to deliver a specific grade of corn, in the absence of any evidence as to the market value of that grade, the defendant may have a nonsuit.20 Evidence developed upon crossexamination of plaintiff's witnesses may be considered in granting a nonsuit,21 and all the testimony admitted without objection must be considered.22 Where defendant's evidence is in, the question as to who has the burden of proof is immaterial.23 Only the evidence tending to prove plaintiff's case with fair inferences and presumptions therefrom, and no contradictions thereto, should be considered. The credibility of witnesses cannot be ques

24

15 Skelton v. Schecht Motor Co., 22 Cal. App. 144, 133 Pac. 504.

16 Toutle Logging Co. v. Hammond Lumber Co., 78 Wash. 568, 139 Pac. 625.

17 Olson-Mahony Lumber Co. v. Maxwell, 18 Cal. App. 668, 124 Pac. 100; Sebring v. Harris, 20 Cal. App. 56, 128 Pac. 7; Hammer v. Campbell etc. Gas B. Co., 74 Or. 126, 144 Pac. 396.

18 Boyd v. San Pedro etc. R. Co., 45 Utah, 449, 146 Pac. 282.

19 Johnson v. Southern Cal. Edison Co., 27 Cal. App. 425, 150 Pac. 656; Cal. Code Civ. Proc. 581.

20 Schon etc. Co. v. Snow, 43 Colo. 538, 96 Pac. 182.

21 Waltz v. Silveria, 25 Cal. App. 717, 145 Pac. 169.

22 Wasiljeff v. Hawley Paper Co., 68 Or. 487, 137 Pac. 755.

23 Henry v. Chicago M. etc. Ry. Co., 84 Wash. 633, 147 Pac. 425.

24 Marron v. Marron, 19 Cal. App. 326, 125 Pac. 914.

tioned, all testimony being assumed to be true.25 While the court may in its discretion grant a motion for nonsuit, made at the close of the evidence for both parties, where from the evidence it is clear that it would be the court's duty to set aside any verdict rendered against defendant, yet, when the motion is made at the close of plaintiff's case, the evidence, whether erroneously admitted or not, if relevant to the issues, must be given full credit, and any conflict in the testimony cannot be considered.26 All testimony in the record is entitled to consideration in the light most favorable to plaintiff.27 The court may submit a case to the jury without allowing argument upon the motion for a nonsuit.28

§ 1489. Effect of motion for nonsuit.-Upon a motion for a nonsuit, the question of the credibility of the witnesses does not arise; the testimony in favor of plaintiff is assumed to be true, and the defendant must be deemed to have admitted for the purpose of the motion all the facts upon which there is any evidence.29

§ 1493. Nonsuit-Review on appeal.-The failure to stand on a motion for nonsuit waives the objection, and

25 Leitch v. Marx, 21 Cal. App. 208, 131 Pac. 328.

26 Bush v. Wood, 8 Cal. App. 647, 97 Pac. 709; Paolini v. Fresno C. & I. Co., 9 Cal. App. 1, 97 Pac. 1130.

27 Dillard v. Olalla Min. Co., 52 Or. 126, 94 Pac. 966, 96 Pac. 678; McCafferty v. Flinn, 32 Nev. 269, 107 Pac. 225.

28 Hull v. Seattle R. & S. R. Co., 60 Wash. 162, 110 Pac. 804; Robinson v. Salt Lake City, 37 Utah, 520, 109 Pac. 817.

29 Davis v. Crump, 162 Cal. 513, 123 Pac. 294; Mitchell v. Brown, 18

Cal. App. 117, 122 Pac. 426; Jones v. Bay Cities El. Co., 22 Cal. App. 81, 133 Pac. 492; Hill v. Pacific G. & El. Co., 22 Cal. App. 788, 136 Pac. 492; O'Connor v. Mennie, 169 Cal. 217, 146 Pac. 674; South Idaho Conference v. Hartford Fire Ins. Co., 26 Idaho, 712, 145 Pac. 502; Culver v. Kehl, 21 Idaho, 595, 123 Pac. 301; McAllister v. Rocky Ford Coal Co., 45 Mont. 433, 123 Pac. 696; Lackman v. Simpson, 46 Mont. 518, 129 Pac. 325; Daily v. Marshall, 47 Mont. 377, 133 Pac. 681; Weck v. Reno Tr. Co., 38 Nev. 285, 149 Pac. 65; Corby v. Hull, 72 Or.

the whole testimony will be considered,30 since the defendant thereby risks the possibility of the defects in plaintiff's proof being supplied by later evidence.31 An objection is not waived, however, unless the testimony furnished by the defendant cures the defect in the plaintiff's testimony,32 and the upper court will consider all the testimony where defendant has furnished any evidence after the overruling of a motion for nonsuit.33

429, 143 Pac. 639; Thienes v. Francis, 69 Or. 165, 138 Pac. 490; Smith v. Columbus Buggy Co., 40 Utah, 580, 123 Pac. 580; Valentine v. Northern Pac. Ry. Co., 70 Wash. 95, 126 Pac. 99; Hillebrant v. Manz, 71 Wash. 250, 128 Pac. 892.

30 Parker v. Washington Tug & B. Co., 85 Wash. 575, 148 Pac. 896; Smith v. Potlach Lumber Co., 22 Idaho, 782, 128 Pac. 546; TonkinClark Realty Co. v. Hedges, 24 Idaho, 304, 133 Pac. 659. Contra, Boyd v. San Pedro etc. Ry. Co., 45 Utah, 449, 146 Pac. 282.

31 Denver v. Munroe, 21 Colo. App.

16

312, 121 Pac. 684; Lowe v. San Francisco & N. W. Ry. Co., 154 Cal. 573, 98 Pac. 678; Yergy v. Helena L. & Ry. Co., 39 Mont. 213, 18 Ann. Cas. 1201, 102 Pac. 310; Taylor v. Taylor, 54 Or. 560, 103 Pac. 524.

32 Patty v. Salem Flouring Mills Co., 53 Or. 350, 96 Pac. 1106, 98 Pac. 521, 100 Pac. 298; Dryden v. Pelton etc. Co., 53 Or. 418, 101 Pac. 190.

33 Dignam v. Shaff, 51 Wash. 412, 22 L. R. A. (N. S.) 996, 98 Pac. 1113; Cleary v. General Contracting Co., 53 Wash. 254, 101 Pac. 888; Schon v. Modern Woodmen of America, 51 Wash. 482, 99 Pac. 25.

§ 1507a. Appeal from justice court.

§ 1508. On judgment affirmed in part and reversed in part.

§ 1509. New trial awarded.

§ 1510. Judgment reversed. 1514. Costs-Security for.

§ 1494. In general.-If both parties prevail, the costs should be divided between them,1 and where a cross-complaint for an injunction in damages is filed in a suit brought by one riparian owner against another for obstructing the water of a stream, and the action is dismissed, the court should require each party to pay his own costs.2 Where the owner of stock was compelled to replevin them from a party who claimed the stock but was only able to establish a lien for care, the costs should be divided. Where the defendant disclaims any title, costs should not be taxed against him in a quiet title action.* Defendants who resist the delivery of warrants in their individual capacity in a mandamus suit are liable to the prevailing party for costs.5 The sheriff is not a mere nominal party

1 Field v. Hudson, 20 N. M. 178, 147 Pac. 283.

2 Fischer v. Davis, 24 Idaho, 216, 133 Pac. 910; Ison v. Sturgill, 57 Or. 109, 109 Pac. 579, 110 Pac. 535; White v. Price, 56 Or. 376, 108 Pac. 776.

8 Simmons v. Simmons, 23 Idaho, 485, 130 Pac. 784.

4 Cook v. Dabney, 70 Or. 529, 139

Pac. 721.

5 Board of Directors v. Wessels, 21 Colo. App. 456, 122 Pac. 400.