
    Heinrich Mundhenke v. William Mundhenke.
    1. Non-suit—When it May be Taken.—Where the trial is by the court without a jury the plaintiff may take a non-suit after the court has stated its finding but before a minute of record has been made. The court can not deprive a plaintiff of this right by first making the minute and then announcing its opinion.
    Assumpsit, upon a promissory note. Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding.
    Heard in this court at the March term, 1896.
    Reversed and remanded with directions
    Opinion filed April 27, 1896.
    M. D. Brown, attorney- for appellant.
    Cutting, Castle & Williams, attorneys for appellee.
   Mr. Justice Shepard

delivered the opinion of the Court.

This cause was tried before a judge of the Circuit Court without a jury, and resulted in a finding of the issues in favor of the defendant (appellee here), and a judgment against the plaintiff (appellant), for costs.

The bill of exceptions, at the conclusion of the evidence, . states as follows:

“ Whereupon the court entered of record a finding for the defendant, in the words and figures following, to wit:

'The court finds the issues for the defendant, and judgment on the finding, and against the plaintiff, for costs of this suit.’

The Cottbt : I will have to find for the defendant.
Mb. JBrowh : I will take a non-suit. This motion for non-suit was made and asked for immediately on the court announcing his finding, and before any entry on the record of the court’s finding was announced or made known.
To which counsel for defendant then and there objected, on the ground that it was too late after the court had announced his finding. The objection was sustained, to which ruling counsel for plaintiff then and there excepted.”

Then follows:

“ The foregoing was all the evidence introduced on the trial of this causé, and thereupon the court announced his finding to be against the plaintiff. Whereupon the plaintiff, by his counsel, immediately moved for a non-suit. The •court overruled the motion, and to which ruling the plaintiff then and there, by his counsel, excepted. Said motion for a non-suit was made before any entry on the record of the court’s finding was announced by the court.
Whereupon the plaintiff, by his counsel, excepted to the finding of the court and moved for a new trial, which motion for a new trial is in words and figures as follows

It is not quite clear what the precise meaning is of what is so quoted, but assuming it to mean what appellee says in his brief, that “ the finding of the court for the defendant was entered of record before the court announced it, and before counsel for plaintiff moved for a non-suit,” it was error for the court to deny to appellant his right to take a non-suit.

In Howe v. Harroun, 17 Ill. 494, the court commented upon the course of practice to be pursued with reference to taking non-suits, in cases where the issues of fact have been submitted to the court for trial in place of a jury, and held that the plaintiff, in such cases, must have the right to take a non-suit, after the court has announced its opinion, and before a note thereof is entered.

And this court, in Turnock v. Walker, 54 Ill. App. 374, where numerous other authorities are cited, said: When a case is tried without a jury, a party is entitled to take a non-suit when the same is moved for before a note has been made of the finding of the court.” See, also, Denton v. Central S. S. House, 61 Ill. App. 267.

The precise point was not involved in either of those cases that here arises under the assumption of fact, as stated; but manifest reason and justice require that if the right to take a non-suit exists after the. court has announced its opinion, but before a minute of record has been made, the court should not be permitted to deprive a plaintiff of that right by first making the minute and then announcing its opinion.

The appellant made his motion'for a non-suit in apt time, and it should have been allowed.

The judgment will therefore be reversed and the cause remanded, with directions to enter á non-suit upon appellant’s said motion. Reversed with directions.  