
    Herff Motor Co. v. Seewald.
    
      (Nashville,
    
    December Term, 1942.)
    Opinion filed July 3, 1943.
    
      King, King & Laughlin and Thomas C. Farnsworth, all of Memphis, for plaintiff in error.
    Abe D. WaldaueíR and Harry TJ. Scruggs, both of Memphis, for defendant in error.
   Mr. Justice Prewitt

delivered the opinion of the Court.

The parties herein will he referred to according to their status in the lower court.

The plaintiff, Herff Motor Company, stored a number of automobiles with the defendant Seewald, receiver of Central Garage. It is insisted by plaintiff that these automobiles were damaged by freezing and he instituted this suit, along with several other suits, to recover damages for each of the automobiles.

’ The defendant insists that this procedure involves a splitting of the cause of action and, therefore, plaintiff is precluded from recovering a judgment 'except on. one automobile, the one involved in the present suit.

The plaintiff recovered a judgment against the defendant in a justice of the peace court and the defendant appealed to the circuit court. Thereupon the plaintiff appeared in court, after having notified the defendant, and sought to take a voluntary nonsuit in all the cases. At the same time plaintiff made this motion the defendant made a motion to dismiss his appeal.

Plaintiff relies upon section 8816 of the Code providing as follows:

‘ ‘ The plaintiff may, at any time before tbe jury retires, take a nonsuit or dismiss bis action as to any one or more defendants, but if tbe defendant bas plead a set-off or counterclaim, tbe latter may elect to proceed on such counterclaim in tbe capacity of a plaintiff.”

Tbe defendant concedes that the plaintiff bas tbe right to take a nonsuit at any time before tbe case is submitted to tbe jury, or at any time before tbe case goes to tbe court for decision, but that plaintiff will not be permitted to take a nonsuit where it prejudices some right already accrued to tbe defendant. Barnes v. Noel, 131 Tenn., 126, 174 S. W., 276. In other words, in tbe instant case, tbe defendant contends that by dismissing bis appeal this leaves tbe judgment of tbe justice of tbe peace in full force and, therefore, plaintiff would only be entitled to recover damages in the one suit, he having elected to institute separate suits. Where an appeal comes from a judgment of tbe justice of tbe peace to tbe circuit court tbe case is tried de novo. Certainly, tbe motion to take a voluntary nonsuit was made before tbe case was ever passed to tbe court for decision. Graves v. Union R. Co., 177 Tenn., 699, 152 S. W. (2d), 1026.

The respective motions of tbe parties were presented to tbe trial court contemporaneously, and we are of opinion that tbe trial judge was within bis rights under tbe section of tbe Code above quoted in permitting a nonsuit. Tbe contention of tbe defendant applies only to some right interfered with in tbe instant suit. We are of opinion that tbe above statute is controlling and that tbe motion of the plaintiff, coming before tbe submission of tbe case to tbe jury, or its submission to the court for a decision, was properly granted.

We think tbe trial judge reached tbe right conclusion and bis judgment is affirmed with costs.  