evidence under the old English procedure, it is purely a question
of law for the courts.60 When at the close of all the testimony
on behalf of both plaintiff and defendant the court directs the
jury to find a verdict in favor of the defendant, which is accord-
ingly done, this is in effect a judgment of nonsuit.61 A voluntary
nonsuit taken by the plaintiff at any time before trial does not
estop him from bringing a new action.62

§ 1487. Motion.-A party moving for a nonsuit should state
in his motion precisely the grounds upon which he relies, so that
the attention of the court and the opposite counsel may be
particularly directed to the supposed defects in the plaintiff's
case.63 Where it is made without stating the grounds, it is not
error to overrule it.64 But this rule does not apply where the
plaintiff's case could not be cured, even if attention had been
called to its defects by a specification of the grounds of the
motion for nonsuit.65 Defendant will not be allowed to raise
new points afterwards in the supreme court.66 If the grounds
of the motion do not appear of record, the supreme court will
not consider it.67 Where an affidavit for attachment set out that
a mortgage securing the note sued on had become worthless as
security, and such affidavit was not offered in evidence, it cannot
affect the action of the court on motion for a nonsuit.68

Pac. 1108; Messenger v. Woge, 20
Colo. App. 275, 78 Pac. 314; Small
v. Harrington, 10 Idaho, 499, 79 Pac.
461; Rauh v. Oliver, 10 Idaho, 3, 77
Pac. 20.

60 Kleinschmidt v. McAndrews, 4
Mont. 8, 223, 5 Pac. 281, 12 Pac.
286.

61 Powers v. Klenzie, 15 Mont.
177, 38 Pac. 833; Mayer v. Caroth-
ers, 14 Mont. 274, 36 Pac. 182; Creek
v. McManus, 13 Mont. 152, 32 Pac.
675; Jensen v. Barbour, 15 Mont.
582, 39 Pac. 906. See Marshall v.
Manufacturing Co., 1 S. Dak. 350,
47 N. W. 290; Sanford v. Duluth
etc. Co., 2 N. Dak. 6, 48 N. W. 434;
Gurley v. Tomkins, 17 Colo. 437, 30
Pac. 344.

62 Martin v. McCarthy, 3 Colo.
App. 37, 32 Pac. 551. See Lambert
v. Sandford, 2 Blackf. 137, 18 Am.
Dec. 149.

63 People v. Banvard, 27 Cal. 474.
64 Kiler v. Kimbal, 10 Cal. 267;
Wright v. Fire Ins. Co., 12 Mont.
474, 31 Pac. 87, 19 L. R. A. 211;
Silva v. Holland, 74 Cal. 530, 16 Pac.
385; Flynn v. Dougherty, 91 Cal.
669, 27 Pac. 1080, 14 L. R. A. 230;
Coffey v. Greenfield, 62 Cal. 602; Mil-
ler v. Luco, 80 Cal. 257, 22 Pac. 195;
Shain v. Forbes, 82 Cal. 577, 23 Pac.
198; Palmer v. Marysville etc. Pub.
Co., 90 Cal. 168, 27 Pac. 21; Belcher
v. Murphy, 81 Cal. 39, 22 Pac. 264;
Carter v. Hopkins, 79 Cal. 82, 21 Pac.
549.

65 Daley v. Russ, 86 Cal. 114, 24
Pac. 867.

66 Raimond v. Eldridge, 43 Cal.
506; Johnson v. Moss, 45 Cal. 518.
67 Poehlmann v. Kennedy, 48 Cal.

201.

68 Brophy v. Downey, 26 Mont.
252, 67 Pac. 312.

§ 1488. When and when not granted.-Nonsuit is not proper
where there is any evidence tending to prove the indebtedness.69
Nonsuit is properly denied when there is any evidence tending
to sustain the plaintiff's case.70 On motion for nonsuit that
which the evidence tends to prove will be regarded as proved.71
If the evidence of the plaintiff would not authorize a jury to
find a verdict for him, or if the court would set it aside, if so
found, as contrary to evidence, it is the duty of the court to non-
suit the plaintiff.72 Where plaintiff's own evidence shows he
ought not to recover, a nonsuit should be granted.73 So if he
fails to offer any evidence.74 A plaintiff should not be nonsuited
for the non-payment of the costs of two former suits for the same
cause of action.75 Where leave has been obtained to file an
amended complaint to correspond with the proofs, it is error to
direct a nonsuit for insufficiency of the original complaint, if the
proofs show a cause of action.76 So, in an action to recover a
balance due upon account, it is error to nonsuit the plaintiff

69 Cravens v. Dewey, 13 Cal. 40.
70 Warren v. McGill, 103 Cal. 153,
37 Pac. 144; Wright v. Roseberry, 81
Cal. 87, 22 Pac. 336; Low v. Warden,
70 Cal. 19, 11 Pac. 350; Felton v.
Millard, 81 Cal. 540, 21 Pac. 533, 22
Pac. 750; Catlin Land etc. Co. v.
Best, 2 Colo. App. 481, 31 Pac. 391;
Ferrera v. Parke, 19 Or. 141, 23 Pac.
883; Salomon v. Cress, 22 Or. 177,
29 Pac. 439; Blue v. McCabe, 5 Wash.
125, 31 Pac. 431; Bowers v. Union
Pacific R. R. Co., Utah, 215, 7 Pac.
251; Black v. City of Lewiston, 2
Idaho, 276, 13 Pac. 80.

71 State v. Benton, 13 Mont. 306,
34 Pac. 301; Soyer v. Great Falls
Water Co., 15 Mont. 1, 37 Pac. 838.
See Whitney Mfg. Co. v. Richmond etc.
R. R. Co., 38 S. C. 365, 37 Am. St.
Rep. 767, 17 S. E. 147; Wallace v.
Suburban R. R. Co., 26 Or. 174, 37
Pac. 477, 25 L. R. A. 663; Williams
v. Norton, 3 Kan. 295.

72 Mateer v. Brown, 1 Cal. 221, 52
Am. Dec. 303. See, also, to same
effect, Denver etc. R. R. Co. v. Pick-
ard, 8 Colo. 163, 6 Pac. 149; City
of Denver v. Soloman, 2 Colo. App.
534, 31 Pac. 507; Guldager v. Rock-

well, 14 Colo. 459, 24 Pac. 556;
Wanner v. Kindel, 4 Colo. App. 168,
34 Pac. 1014; Brasher v. Denver etc.
Ry. Co., 12 Colo. 384, 21 Pac. 44;
Lord v. Pueblo etc. Refining Co., 12
Colo. 390, 21 Pac. 148; Union Pa-
cific Ry. Co. v. Sternberg, 13 Colo.
141, 21 Pac. 1021; Grant v. Baker, 12
Or. 329, 7 Pac. 318; Herbert v. Dufur,
23 Or. 462, 32 Pac. 302 Williams v.
Williams, 1 Colo. App. 281, 28 Pac.
726; Hogele v. Wilson, 5 Wash. 160,
31 Pac. 469; Garver v. Lynde, 7 Mont.
108, 14 Pac. 697; Linkauf v. Lom-
bard, 137 N. Y. 417, 33 Am. St.
Rep. 743, 33 N. E. 472, 20 L. R. A.
48.

73 Cummings v. Helena etc. Co., 26
Mont. 434, 68 Pac. 852; Briggs v.
Collins, 27 Mont. 405, 71 Pac. 307;
Nord v. Boston & M. etc. Co., 30
Mont. 48, 75 Pac. 681.

74 Kohler v. Wells Fargo & Co., 26
Cal. 607; Langhoff v. Milwaukee etc.
R. R. Co., 19 Wis. 489.

75 Janeway v. Skerritt, 1 Vroom,
(30 N. J. L.) 97.

76 Richardson v. Carbon Hill Coal
Co., 6 Wash. 52, 32 Pac. 1012, 20 L.
R. A. 338.

when it appears from the evidence that he had given an order to a third party for the sum due from the defendant, on the supposition that it was a certain amount, but in fact, as the evidence showed, there was a further balance due him.77 Where the evidence makes out a sufficient prima facie case to entitle the plaintiff to go to the jury, a judgment of nonsuit is erroneous.78 It is error to grant a nonsuit, unless the grounds therefor are called to the attention of the trial judge and the plaintiff at the time the motion is made.79 Where a motion for nonsuit is improperly denied, and the defendant subsequently introduces testimony supplying the defect in the plaintiff's evidence, the error is thereby cured.80 If a motion for a nonsuit is made and overruled, and thereupon the defendant proceeds and puts in testimony, the error, if any, in refusing the nonsuit is waived.81

§ 1489. Effect of motion for nonsuit.-On motion for nonsuit, every fact which the evidence tends to prove will be deemed proved, 82 but it does not admit that a counterclaim set up by defendant is without merit.83 The evidence will be regarded in the light most favorable to plaintiff, and the court cannot base a nonsuit on extrinsic facts, such as a judgment in another case. 84

§ 1490. Nonsuit-Miscellaneous. If a complaint states several causes of action, and the answer admits one, a nonsuit as to that one should not be granted.85 If an answer is in the nature of a confession and avoidance, and the only issue in the case arises between it and the denials of the reply, a judgment of nonsuit on motion of the defendant is not authorized by the

77 Patchen v. Parke etc. Machinery Co., 6 Wash. 486, 33 Pac. 976.

78 Milton v. Denver etc. R. R. Co., 1 Colo. App. 307, 29 Pac. 22.

79 Palmer v. Marysville etc. Pub. Co., 90 Cal. 168, 27 Pac. 21.

80 Higgins v. Ragsdale, 83 Cal. 219, 23 Pac. 316. See Cattell v. Fergusson, 3 Wash. 541, 28 Pac. 750; Weil v. Nevitt, 18 Colo. 10, 31 Pac. 487; Woodbury v. Hinckley, 3 Colo. App. 210, 32 Pac. 860.

81 Brown v. Southern Pacific Co., 7 Utah, 288, 26 Pac. 579; Railroad Co. v. Mares, 123 U. S. 710, 31 L.

Ed. 296. 8 Sup. Ct. 321; Insurance
Co. v. Smith, 124 U. S. 405, 31 L.
Ed. 497, Sup. Ct. 534.

82 McCabe v. Montana Cent. Rv. Co., 30 Mont. 323, 76 Pac. 701; Greene v. Duvergey, 146 Cal. 379, 80 Pac. 234; In re Morgan Estate, 46 Or. 233, 77 Pac. 608, 78 Pac. 1029.

83 Davenport v. Dose, 40 Or. 336, 67 Pac. 112.

84 Cummings v. Helena etc. Co. 26 Mont. 434, 68 Pac. 852; Wood v. Earls, 39 Wash. 21, 80 Pac. 837.

85 Gans v. Woolfolk, 2 Mont. 458.

Oregon code.86 It is not error to permit a defendant to renew a motion for a nonsuit after introducing evidence in his own. behalf, when the entire evidence is such that if the motion had been denied and a verdict found for the plaintiff, it would have been the duty of the court to set the verdict aside as not supported by the evidence.87 The right to take a nonsuit remains. with the plaintiff throughout the entire proceeding.88 A nonsuit can be properly granted after all the evidence on both sides is closed.89 And findings are not required nor proper in a case of nonsuit.90 It is within the discretion of the trial court to allow a plaintiff to introduce further evidence after a motion for nonsuit is made and before it is decided;91 or after the denial of a motion for a nonsuit, to supplement his case by additional proof.92 Where there is a variance between the proof and the complaint in an action, the proof having been received without objection, the court should, upon a motion for a nonsuit, consider the complaint amended to correspond with the facts proven.93 In an action. to quiet title, a nonsuit should not be granted for failure of the plaintiff, after having proved title in himself, to prove an adverse claim, title, or interest in the defendants, when the complaint alleges and the answer admits that the defendants claim and assert an interest in the property.94

§ 1491. The same Relief against stipulation. It is within the discretion of the trial court to relieve a plaintiff from the effect of a stipulation submitting the case on a motion for a nonsuit, and to allow him to file an amended complaint, and its action will not be disturbed upon appeal in the absence of a showing of an abuse of discretion.95 On entry of judgment of dismissal, the court retains jurisdiction so as to entitle it to

86 Rader v. McElvane, 21 Or. 56, 27 Pac. 97.

87 Fagundes v. Central Pacific R. R. Co., 79 Cal. 97, 21 Pac. 437, 3 L. R. A. 824. See Morgan v. Carbon Hill Coal Co., 6 Wash. 577, 34 Pac. 152, 772; Fox V. Southern Pacific Co., 95 Cal. 234, 30 Pac. 384.

88 Currie v. Southern Pacific Co., 23 Or. 400, 31 Pac. 963.

89 Vanderford v. Foster, 65 Cal. 49, 2 Pac. 736; Toulouse v. Pare, 103 Cal. 251, 37 Pac. 146.

90 Id.; Reynolds v. Brumagim, 54 Cal. 254; Harney v. McLeran, 66 Cal. 34, 4 Pac. 884.

91 Tuller v. Arnold, 98 Cal. 522, 33 Pac. 445.

92 Garber v. Gianella, 98 Cal. 527, 33 Pac. 458.

93 Murray v. Meade, 5 Wash. 693, 32 Pac. 780.

94 Vaca Valley etc. R. R. Co. v. Mansfield, 84 Cal. 560, 24 Pac. 145.

95 Robinson v. Exempt Fire Co., 103 Cal. 1, 42 Am. St. Rep. 93, 36 Pac. 955, 24 L. R. A. 715.

vacate the judgment on a showing of mistake, and that mistake need not be mutual.96

§ 1492. The same-Payment of jury.-Where a nonsuit is granted in a civil case, and the jury discharged, the jury fees must be paid by the plaintiff, and no further proceedings should be allowed in the case until such payment.97

§ 1493. The same-Review on appeal.-An error in granting a nonsuit is an error of law, and should be excepted to and specified as such upon an appeal from the judgment, and cannot be reviewed upon the ground that the evidence is insufficient to support the decision. 98 A motion for nonsuit is no part of the judgment-roll.99 The only grounds upon which a motion for nonsuit can be reviewed upon appeal are those specifically stated when the motion was made.100 If any one of the several grounds for the motion is sufficient, a judgment of nonsuit will not be reversed, although the court may have founded its ruling upon an inadequate reason. 101 If it does not appear from the record on appeal that any grounds for a nonsuit were stated in the motion therefor, no error appears in overruling the motion.102 In considering the trial court's ruling in granting a nonsuit, it is the duty of the appellate court to take as proven every fact which the plaintiff's evidence tended to prove, and which was essential to his recovery, and give him the benefit of all legal presumptions arising therefrom. 103 Where after the denial pro forma of a motion for a nonsuit, the defendant declined to offer any evidence, and the cause was submitted upon briefs, the fact

96 Palace Hardware Co. v. Smith, 134 Cal. 381, 66 Pac. 474; Sheehan v. Osborn (Cal.), 69 Pac. 842, 138 Cal. 516, 71 Pac. 622.

97 Lukes v. Logan, 66 Cal. 33, 4 Pac. 883; Fairchild v. King, 102 Cal. 320, 36 Pac. 649.

98 Warner v. Darrow, 91 Cal. 309, 27 Pac. 737. See, also, Toulouse v. Pare, 103 Cal. 251, 37 Pac. 146; O'Connor v. Hooper, 102 Cal. 528, 36 Pac. 939; McKay v. Montana etc. Ry. Co. 13 Mont. 15, 31 Pac. 999; Herbert v. Dufur, 23 Or. 462, 32 Pac. 302. As to record on appeal see Rooney v. Tong, 4 Mont. 597, 2 Pac. 312; McKay v. Montana etc. Ry. Co.,

13 Mont. 15, 31 Pac. 999; Roberts v. Parrish, 17 Or. 583, 22 Pac. 136; Coffin v. Hutchinson, 22 Or. 554, 30 Pac. 424; Fisher v. Kelly, 26 Or. 249. 38 Pac. 67.

99 Barber v. Briscoe, 8 Mont. 224, 19 Pac. 589.

100 Bronzan v. Drobaz, 93 Cal. 647, 29 Pac. 254.

101 Brennan v. Front Street Cable Ry. Co., 8 Wash. 363, 36 Pac.

272.

102 Loring v. Stuart, 79 Cal. 200, 21 Pac. 651.

103 Brown v. Warren, 16 Nev. 231; Patchen v. Keeley, 19 Nev. 404, 14 Pac. 347.