
    Benjamin F. Hageman, Plaintiff in Error, v. William Moreland, Defendant in Error.
    
      Nonsuit. — It is only proper to take a nonsuit where, at the trial, the action of the court is such as to preclude the plaintiff from a recovery. In no other case will the Supreme Court interfere. (See infra Layton v. Itiney.)
    
      
      Error to Clark Circuit Court.
    
    
      James Cowgill, for plaintiff in error.
    N. F. & E. T. Givens, for defendant in error.
   Dryden, Judge,

delivered tlie opinion of the court.

This was a petition for the foreclosure of a mortgage. The defendant answered, and the plaintiff moved to strike out the answer, and the motion being overruled, the plaintiff, for this cause, voluntarily suffered a nonsuit, with leave to move to set it aside. A motion to set aside was made and refused, and the plaintiff brings the case into this court by writ of error.

In the present posture of the case, we can give no opinion .upon the merits. The plaintiff was under no necessity to take a nonsuit. The court has made no decision which necessarily precludes him from a recovery, for if it be admitted that the answer which the court refused -to strike out presented a complete bar to the action, yet it by no means follows that the defendant could or would have sustained the same by proof on the trial of the cause. If he had not, the answer could have done the plaintiff no harm.

It is only where the action of the court, on the trial, is such as to preclude the plaintiff from a recovery that it is proper to suffer a nonsuit. In no other case will this court interfere, as has been decided again and again.

The other judges concurring,

the judgment is affirmed.  