
    [No. 1438.]
    A. LAIRD, Appellant, v. MICHAEL MORRIS, Respondent.
    Practice — Judgment oe Nun-Suit No Bar to Another Action. — Section 3173, Gen. Stats. (Civil Practice Act, sec. 151), does not change the inflexible rule that a.judgment of non-suit-is not a judgment on the merits, and .such, judgment of non-suit is no bftr to another suit upon the same cause of action
    Idem — Non-Suit—Statute Construed. — The only purpose of the statute (Civil Practice'Act, sec: 151) was to- determine in what cases non-suits or dismissals should -hft entered., , The-statu-te is in affirmance-of the common law, anil, though, .by..consolidation, of sections it. is subject to criticism for uncertainty, the. presumption is that no change was intended-in the law.
    Appeal from th,e District Court of. the State .of .Nevada, Eureka county; .A,, L. Fitzgerald,.District.Judge: ,, ,
    Action by-A. Laird against Michael Morris on an account stated-and, on-, an assigned-account for services rendered. Judgment-for defendant.- Plaintiff appeals.-
    Reversed.
    The facts sufficiently appear in the‘opinion.-::-
    
      Henry Fives, for Appellant: - .
    The only question -raised; on:this appeal, is-as to whether the court erred in, deciding that:-the; dismissal - of;, the-first action .amounted to a trial on the merits.- r All of .the-;allegations of.:the: complaint in- that action were fully denied by the answer, and thus distinct - issues were presented to the, court for determination. - Bef.ore-.the court could determine these issues, some kind of proof -must have been presented.-
    In this .case, however, there is no; pretense, -that any oral or documentary evidence, ■ -whatever in .support -of,-- or against,the issues involved were! introduced- -The dismissal -Of that action was simply;>a non-suit granted by-the court at the-' request.of the defendant,-and; while -it' eó-operated as a-final -• judgment and determination of that’ease, it-was no.t--under.---< - the circumstances ajudgment upon the merits.”- - It Simply • . operated-as putting an end-to that-particular'Gas.e;-and-in no way operated as a'bar to another suit-on the same cause of.....-! action. (1 Nev. 495; Storey’s .Eq-. PL, 9th ed.,' sec. 793; 42'-'’-Cal. 644; 21 Am. & Eng. Ency. of -Law, 266>-eí seq. and note -- 1; 5 Id.- 496; 16 Id. 747-48 and-note-'l; 18 Id. 730,'note-2 and-' -■-■ ’ cases cited; Freema-n on-Judg., sec;-261;. 1 Greenleaf-on Ev-.-, sec. 528; 36 111: 278; 88Tnd,155; 34- Barberil;- 2 Smith’s-- '< Leading Cases, 887; 12 Arh. 369; 49-Iowa, 528; 113 Mass. ■> '• - - 231; 108 Mass. 309; 7 Wall. U. S. 107; 117 111. 471; 101 U, S. 688.)
    
      Thomas. Wren and Peter- Preen, • for ,Responden!; (,
    I. To understand the legal bearings- Of the dtémisSa-1 -Of- -' the first-aotion- it will be necessary to-give-a--brief history ¡©f-- -! these -sections of our .practice act- providing- for- dismissals-.1 - - • ■ The sections of our act upon this subject were originally' adopted bodily, word for word, from the - sections- upon the - same subject in the'»California practice act as-they stood in- — ’ 1861-2 'and-later, ¡Stats, 'of- Cal., Practice Act, secs. 143-9, - 11 Stats, of Nev., 1861, pv 338, sees. 148-9. A number-of -decig-1 ■ ions were rendered- by-the supreme court -of - California :updn......these sections--of the California practice -act, and -in this state, • in the-case of Shermati v-. Dilby, 3 Nev., a--decision %as ren- -• dered by the supreme-court of this'state that, as the statute • - then stood, is a stronger case in favor of appellant than the- -• 1 • one cited by counsel -for appellant in 1 Nev. -It- will be'1 observed that there were two sections of the statute of thisJ • 1 - state in regard to dismissals- for a number- of years. : In 1869 our present, practice act w-as amended and-materially Changed - • in many respects, and amohgst -others- the-twO sections-here- -- - tofore existing-were repealed and the provisions in-regard to ■ the dismissal- of actions -were embodied in one section,-and - -C the effect of -a -dismissal, where a: plaintiff fails to -appear -at - * the time set for the trial of - an action, was radically changed,- <• • 1 (Gen. Stats. Nev., 3173.) '
    
      By this section as it now stands, the third subdivision of the same provides that an action may be dismissed by the court “ when the plaintiff fails to appear on the trial and the defendant appears and asks for the dismissal. * * * The dismissal mentioned in the first two subdivisions shall be made by an entry on the clerk’s register. Judgment may thereupon be entered accordingly. In every other case the judgment shall be rendered on the merits.”
    II. What is obviously the purpose of the change in the statute? It could have no possible object except to compel diligence on the part of plaintiffs in the prosecution of suits. It is to prevent defendants from being harassed with a multude of suits upon the same cause of action.
   By the Court,

Belknap, J.:

Plaintiff sued defendant as surviving partner upon two counts: First, upon an account stated; second, upon an assigned account for services rendered to the partnership. Respondent, in his answer, among other things, plead in bar a former judgment between the same parties and for the same cause of action.

The cause was tried by the court. It was shown by the judgment that neither the plaintiff nor his counsel was present at the former trial and that thereupon the defendant asked for a dismissal of .the action. A judgment of dismissal was accordingly given and costs taxed to the plaintiff. Upon this evidence the court found as a fact that the judgment was upon the merits, and as a conclusion of law it was found that it constituted a bar to the plaintiff’s recovery in the present action.

The question upon the appeal is whether the ruling was correct.

The statute governing the subject is as follows:

3173. Sec. 151. An action may be dismissed, or a judgment of non-suit entered in the following cases:
“ First — -By the plaintiff himself at any time before trial, upon the payment of costs, if a counter claim has not been made. If a provisional remedy has been allowed, the undertaking shall thereupon be delivered by the clerk to the defendant, who may have his action thereon.
“ Second — By either party upon the written consent of the other.
“ Third — By the court when the plaintiff fails to appear on the trial, and defendant appears and asks for the dismissal.
“ Fourth — By the court when upon trial, and before the final submission of the case the plaintiff abandons it.
“ Fifth — By the court upon motion of the defendant when upon the trial the plaintiff fails to prove a sufficient case for the jury.
“The dismissal mentioned in the first two subdivisions shall be made by an entry in the clerk’s register. Judgment may thereupon be entered accordingly. In every other case the-judgment shall be rendered on the merits.”

In support of the ruling, it is said, that the practice act as originally adopted ’in 1861 (Stats. 1861, p. 338), was readopted in 1869 (Stats. 1869, p. 218), and upon its readoption was materially changed. The two sections upon the subject of dismissal and judgments of non-suit in the act of 1861 were consolidated and the effect of the change was, it is claimed, that all cases falling under the third, fourth and fifth subdivisions of the statute became judgments on the merits and not of dismissal or non-suit as theretofore; that the mention of the first two subdivisions in connection with the concluding sentence of the section: “In every other case the judgment shall be rendered on the merits,” excludes, by implication, all of the remaining cases provided for.

“A non-suit is the result of an abrupt termination of an action at law. It is the name of a judgment given against the plaintiff when he is unable to prove his case or when he refuses or neglects to proceed with the trial of a cause after it has been put on issue, without determining such issue. Its origin can be easily traced to a very early period in the history of the common law.” (16 Am. and Eng. Ency. of Law, 721.)

“ The effect of a non-suit is to defeat the action, and give costs to the defendant, but the plaintiff may commence a new action for the same cause.” (3 Bl. Com. 377.)

“ It is a settled and inflexible rule that a judgment of non-suit is not a judgment on the merits, and therefore is no har i 'o to 'another'-suit upon the sa/m-e* causé ¡of1 action-.;?;i ■ (Black on Judgments, sec. 699.)

The ¡legislature--is presumed'to have used these terms in their accepted meaning.

’i ,. f'The-only!purpose-of-the'Statute w’ás t’ó’deterffi-iñe in what cases-- non-suits hi1' dismissals-should be entered; and in con- ,¡.. struing it,- this purpose5'should be[kept*in view.-- Five - separ- - - ate ¡and'-independent causes have been-*‘enumerated,' aii-d it is applicable to all cases to which these conditions "apply. Otherwise, only1 eases'-provided’ for in-the -'first-'áhd second -subdivisions--would-be embraced-' within! its'provisions, and - those -in--the-third,-fourth arid fifth subdivisions would be excluded-.' Such construction-would ¡do'-violence*-'to 'the lan-guage'of- :the statute-and defeat thei rdanifest"intent of the legislature."’'It would subordinate- thé' principal purpose of * '-the’-statu-te-to one*Of lesser-importance.

'•The consolidation*of the- two sections*'ihtoone'-worked no ¡ -change in the purpose of 'the law1.* - The elder statute* was free - ■ fcomrambiguity: • The-consolidation'-subjects It* to ¡the-criticism-which* has been-urged: * The*statute i*s-an-affirm-a-nce of -■•* -theUGommOn law.- * The presumption is-that-'nó'rChañge was <-■’ intended-'in that law.- But -if such were- the -intention, it < 'would have been-made-free frdni uncertainty.

• -The.-statute'should--be read as including'all "of the five --classes*Of bases foi which-it-provides, and!-being*-so read its meaning-iS clear.

In' Baker v. Baker, 13 Cal. 87, -the court said-:- “ The statute 0 .of this state), being in affirmance of the common-law,¡is to be : - construed--as: was -the' rule ¡of 'that law1.5' This'is*-‘a received construction 'in such cases. - -Thus, in Miles v. Williams, 1 Peere Wms. 252,the bourt said: ‘The best rule of construing ¡i -acts.of- -parliament is by the-common law,ándby-the course c, -.'which-that -observed in like cases of its own before'the act.’ And, in Arthur v. Bokenman, 11 Mod. 150, the' common pleas said: The general rule in exposition of ¡all acts!6f'parliament is this: That in all-doubtful- matters)and when the expression is'iif genéral terms/theyare-to receive-such-a construcfionuas may*be*-agreeablé"to the rules1 of-the-common law*in cases-of'-that naturey* for-statutes1 are not-presumed to make any alterations in the common law, further or otherwise than "the act-does ‘expressly'declare; therefore, in all general matters, the law presumes the act "did hot "intend to make any-alteration; for,:if the parliament -had ffia'd that -design, they would have'expressed-it in' the act.’ ”

' - Judgment is‘reversed and- cause* remanded.  