
    Mart Staggs v. Albert Vaughn.
    
      (Jackson,
    
    April Term, 1959.)
    Opinion filed June 5, 1959.
    Newton P. Allen, Armstrong, MoCadden, Allen, Braden & Goodman, Memphis, William B. Black, Tip-tonville, for appellant.
    Miles & Miles, Union City, Fred Robertson, Tipton-ville, for appellees.
   PER CURIAM.

The sole question involved is whether or not the proceedings before the Justice of the Peace constituted a former adjudication of this same case barring the present action of the plaintiff, Albert Yaughn. The Circuit Judge overruled the plea of former adjudication and the case was tried before a jury resulting in a verdict for this plaintiff, Yaughn, and against the defendant below, Staggs, for $2,500.

The Court of Appeals reversed and dismissed Vaughn’s suit and held that the trial judge should have sustained Stagg’s plea of former adjudication.

The plaintiff below, Vaughn, was involved in an automobile accident with the defendant, Staggs, in Lake County, on December 22,1956. On the same day Yaughn brought a suit in the Court of Wilson Hayes, Justice of the Peace, for property damage and attempted to attach defendant’s car. During the course of the proceedings and before all the proof was in, the magistrate wrote down on the back of the warrant, a judgment for $200 in favor of the plaintiff. It developed in the proof that the defendant was the conditional vendee of the car, and that it conld not be reached in the magistrate’s hearing, so the plaintiff, Vaughn, told the magistrate that he wanted to dismiss the suit. Therefore an order of dismissal was entered on the magistrate’s docket that same day and the cost paid by the plaintiff.

It appears that neither party was represented by counsel before the magistrate.

Following this on January 22, 1957, the plaintiff filed his action for damages in the Circuit Court of Lak^ County for personal injuries of $9',999.99 and property damages $300. We have granted certiorari.

The right to take a non-suit is regulated by Statute; the pertinent statutory provisions applicable being set out in Sections 20-1311, 20-1312, 20-1313, T.C.A., which are as follows:

“20-1311. Nonsuit before retirement of jury. — The plaintiff may, at any time before the jury retires, take a nonsuit or dismiss his action as to any one or more defendants, but if the defendant has plead a setoff or counterclaim, the latter may elect to proceed on such counterclaim in the capacity of a plaintiff.”
“20-1312. Withdrawal of counterclaim. — The defendant may, in like manner, withdraw his counterclaim at any time before the jury retires to consider of their verdict.”
“20-1313. Dismissal in nonjury trials. — If the trial is by the court instead of the jury, the nonsuit or dismissal provided for in secs. 20-1311 and 20-1312 shall be made before tbe canse is finally submitted to tbe court, and not afterwards.”

Section 20-1313, T.C.A., is tbe section applicable to tbe facts involved in tbe present case. It is insisted by tbe plaintiff below, Yaugbn, that a non-suit may be taken at anytime before tbe jury retires, or before tbe matter is finally submitted to tbe court. Nashville, C. & St. L. R. Co. v. Sansom, 113 Tenn. 683, 84 S.W. 615.

It bas also been beld that a plaintiff may take a non-suit even after a motion for a directed verdict bas been sustained. Darby v. Pigeon Thomas Iron Co., 144 Tenn. 298, 232 S.W. 75.

It is also insisted by tbe plaintiff below, petitioner bere, that the Sections of tbe Code above set out have reference to proceedings in tbe Circuit Court and not before a Magistrate.

It is true that proceedings before a Magistrate are informal but in tbe present case it appears that the magistrate bad already entered judgment for tbe plaintiff in tbe sum of $200 and thereupon tbe defendant left tbe court room of the magistrate.

We are of tbe opinion that this was a final judgment even though tbe docket of tbe magistrate shows that tbe plaintiff there took a non-suit.

It therefore follows that tbe Circuit Judge should have sustained tbe plea of res adjudicata and that tbe Court of Appeals was correct in reversing tbe judgment of tbe trial judge for failure to sustain this plea.

This being tbe case tbe judgment of tbe Court of Appeals is affirmed.  