Moore v. Archer

This was an action of trespass quare clausum. The plaintiffs having put in their evidence and rested, the defendant moved for a nonsuit and stipulated that if the Law Court should find that the evidence would sustain the action it might order judgment for the plaintiffs with damages assessed at ten dollars. A non-suit was ordered and the plaintiffs brought the case to the Law Court on exceptions to that order.

*287At the oral argument the defendant claimed that there was no evidence that he or his.servants had made any entry at all upon the land described in the writ. The plaintiffs claimed that it was the understanding at the trial that the entry was admitted and that the only question in the case was the sufficiency of the plaintiffs’ title and possession to maintain the action. The defendant however would not admit that such was the understanding. While from all the circumstances it does seem probable that the entry was not understood to be in dispute yet there was no evidence of entry in the record before us. The general issue was pleaded which put the entry directly in issue. In his brief statement and in his admissions of record, the defendant carefully avoided admitting the entry as a fact. His willingness to have judgment go against him in case the plaintiffs’ evidence showed a cause of action would seem to indicate that he reserved all points as to the sufficiency of the evidence.

But whatever the fact may be, or whatever the understanding was, the only question before us is whether the evidence shows that the order of nonsuit was erroneous. Inasmuch as that evidence fails to show the fact of entry, a fact essential to the maintenance of the action, the nonsuit was rightly ordered".

If, as seems probable, the plaintiffs omitted proving the entry because of their justifiable understanding that it was and would be admitted, there seems to be no way to relieve them as the case is presented. There was a ruling on the evidence. There is no suggestion that the bill of exceptions does not present the question ruled upon fairly and fully. If the exceptions be dismissed or discharged, instead of being considered and overruled, that ruling remains in force; the nonsuit stands. The plaintiffs only remedy would seem to be to bring a new action and at the trial prove what is not expressly admitted on the record.

Exceptions overruled.