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.