
    Micajah L. Adams et al., Plaintiffs in Error, v. Bohan S. Shepard, Defendant in Error.
    ERROR TO COOK.
    So long as any material issue, in a case which has been submitted to the court, to be tried without a jury, remains undetermined, the plaintiff may submit to a non-suit.
    An issue of property in the plaintiff in error, Adams, was submitted to, and tried by the court, in an action of replevin, on the 5th March, 1860, and taken under advisement until the 14th March. On that day the court found the issue for the plaintiff in error, Adams, and the following minutes were made:
    By the court:
    “ March 14—Judgment for defendant, with retorno habendo. Motion for new trial overruled—suspend till to-morrow, because question of damages not determined.”
    By the court:
    “ March 14—Judgment for defendant, with retorno habendo.
    
    Damages assessed at f>-. Motion by plaintiff for new trial
    overruled. Excepted.”
    The following entry was also drawn up at large upon the order book:
    “ This day again came the said parties, in person and by their respective attorneys, and the court being now sufficiently advised of and concerning the matter submitted, doth order and consider, that the issue of property herein be found for the defendant, and that he have return of the property described in the declaration, and that defendant’s damages for the detention of said property, be assessed at seven hundred dollars.”
    Thereupon defendant objects to the amount of damages assessed by the court, as insufficient; whereupon the court directs the clerk not to enter the said judgment, until the subject of damages shall. be further considered, and said cause is again taken under advisement, with a view to reconsider the subject of damages.
    After this the parties separate, and plaintiff below, by his counsel, without any notice to defendants or their counsel, returned into court, and entered a motion for leave to enter a non-suit; which was allowed on the 30th March, and defendant in error entered a non-suit in the cause.
    W. B. Soates, for Plaintiffs in Error.
    J. M. S. Causin, for Defendant in Error.
   Walker, J.

At the common law, which recognized trials alone by jury, a non-suit could only be submitted to before the jury retired to consider of their verdict. But, under our statute permitting the parties to try their cause by the court, without a jury, and permitting either party to except to the opinion of the coui’t, a difficulty may arise as to the precise time at which a party must take his non-suit. The question is then presented, whether the non-suit was asked for and submitted to before this case was finally determined. The court had heard the evidence, and found the title of the property in the plaintiff, and that he should have a return, and the damages were assessed, but the clerk was ordered not to enter judgment, until the court had further considered of the damages. At this stage of the case, the plaintiff below submitted to a non-suit, which was allowed and entered by the court, to which the defendant objects, and asks a reversal.

In the case of Howe v. Harroun, 17 Ill. R. 494, the court say that the plaintiff must have the right to take a non-suit after the court has announced its opinion, and before a note thereof is entered. When the court has heard the evidence, found the issues, pronounced a judgment, and made an entry of its finding and the judgment which shall be entered by the clerk, the case is then ended. But so long as any of the material issues in the case remain undetermined by the court, the plaintiff has the right to submit to a non-suit.

In this case, the court had found the law and facts, and a note was made, but the court opened the finding as to the damages, which was again taken under consideration, and was undetermined when the non-suit was entered. The court had also, when the question of damages was taken into reconsideration, ordered the clerk not to enter up a judgment on this finding. This, then, placed the whole case in the same situation as though the court had made no minute of its finding. And if that order had not been made, one of the substantial issues in the case was before the court, and undetermined. The ascertainment of the amount of damages was important, as it was for real, and not for nominal compensation for the loss of the use of the property. Until that question was determined, the plaintiff had the right to submit to a non-suit.

The judgment of the court below is affirmed.

Judgment affirmed.  