I cannot concur in the opinion of Mr. Justice NORTH, and, under the mandate of the Constitution, article 7, § 7, I state my reasons.
The right to submit to a nonsuit or to discontinue an action at any time before submission, where no relief is asked by a defendant, is substantial, comes by constitutional retention of common law, and remains until changed by statute.
As stated in Ex parte Skinner Eddy Corp., 265 U.S. 86, 92,93 (44 Sup. Ct. 446):
"At common law a plaintiff has an absolute right to discontinue or dismiss his suit at any stage of the proceedings prior to verdict or judgment, and this right has been declared to be substantial. Barrett v. Railway Co., 250 U.S. 473 (39 Sup. Ct. 540); Confiscation Cases, 7 Wall. (75 U.S.) 454, 457;Veazie v. Wadleigh, 11 Pet. (36 U.S.) 55; United States, exrel. Coffman, v. Railway Co., 55 C.C.A. 320 (118 Fed. 554)."
The Constitution of this State provides:
"The common law and the statute laws now in force, not repugnant to this Constitution, shall remain in force until they expire by their own limitations, or are altered or repealed." Schedule, § 1.
Statutes in this State have altered the common-law right as follows:
"In any action hereafter commenced in this State when the defendant has given notice of a set-off or recoupment, the plaintiff shall not be allowed to discontinue his suit or submit to a nonsuit without the consent of the defendant." 3 Comp. Laws 1929, § 14139.
Also:
"That in any civil action hereafter commenced in this State, whenever the defendant shall have entered *Page 168 upon his defense to the action in open court, the plaintiff shall not be allowed to discontinue his suit or submit to a nonsuit without the consent of the defendant." 3 Comp. Laws 1929, § 14355.
By such enactments the legislature has clearly recognized the common-law right except in certain instances. This court, by former Circuit Court Rule No. 43, recognized the common-law right except as modified by statute.
It has been repeatedly held that the mere burden, expense, and annoyance to the defendant of another suit in the same controversy is not, standing alone, sufficient ground for denying plaintiff's application to dismiss or submit to a voluntary non-suit. This is so in equity cases.
"It is very clear from an examination of the authorities, English and American, that the right of a complainant to dismiss his bill without prejudice, on payment of costs, was of course except in certain cases. Chicago A. R. Co. v. UnionRolling Mill Co., 109 U.S. 702 (3 Sup. Ct. 594). The exception was where a dismissal of the bill would prejudice the defendants in some other way than by the mere prospect of being harassed and vexed by future litigation of the same kind." Exparte Skinner Eddy Corp., supra.
This court said the same thing in Leach v. Dolese, 186 Mich. 695,698 (Ann. Cas. 1917A, 1182).
"After a plaintiff has suffered a nonsuit or has dismissed his cause of action, there being no counterclaim, the court is without further jurisdiction and has no right to render any judgment in his favor nor any judgment against him. The parties are out of court for every purpose other than to carry the order into effect, or to vacate or modify the same." 9 R. C. L. p. 209. *Page 169
In submitting to a nonsuit, plaintiff exercised a substantial right existing by virtue of law, preserved by the Constitution, and Court Rule No. 38, effective January 1, 1931, abrogating such right, is judicial legislation and void.
There should be reversal.
POTTER and McDONALD, JJ., concurred with WIEST, J.