
    No. IX.
    Isaac Guest v. John Guest.
    (See .)
    
      New trial awarded.
    
    
      
      .—Guest v. Guest, p. 394.
      Court has no power to enter an involuntary nonsuit. Allcom v. Sweeney, Dal., 494; Sandoval v. Rosser, 86 T., 682, 686. Appeal does not lie from judgment of nonsuit by a justice of the peace on ground that plaintiff failed to appear. Morgan v. Johnson, 4 T., 117.
    
   SCURRY, Justice.

In this case it appears from the record that judgment of nonsuit was entered by the court below upon motion of the defendant. The word nonsuit is technical in its meaning, and alone specifies that it is by the action of a party bringing a suit that such judgment can be rendered. Nonsuit can be taken by the plaintiff below; but neither the district court nor any other court has the power to compel the party to take a nonsuit.

A party may take a judgment by nonsuit if he chooses, but the court can not force him to do so. 1 Pet., 471.

The district court has no power whatsoever to order a peremptory non-suit. 6 Pet., 598.

Nonsuit may be entered by the court, but not without the acquiescence and consent of the plaintiff. 1 Pet., 491.

It is therefore the opinion of the court, that this cause be remanded to the court below, and that the judgment of nonsuit be set aside and a new trial awarded.  