Nonsuit. Where an answer admits the facts in the complaint, but denies all legal conclusions only, judgment may be allowed on motion: Simpson v. Prather, 3 Or. 26.

Plaintiff has a right to take a nonsuit at any time before the jury retires, there being no counterclaim: Hancock Co. v. Bradford, 13 Cal. 637; Brown v. Harter, 18 Id. 77; but he cannot insist on taking a nonsuit after the action has been tried, submitted, and taken under advisement by the court: Heinlin v. Castro, 22 Id. 102. If one of the several defendants in ejectment answers, and the others make default, the plaintiff may, before trial, dismiss the action as to the defendant answering, and take judgment against the others: Dimick v. Deringer, 32 Cal. 488.

If affirmative relief is sought by the defendant, the plaintiff cannot dismiss: Robinson v. Placerville R. R. Co., 3 West Coast Rep. 23; Thompson v. Spray, 3 Id. 433. Where defendants set up a counterclaim and prayed affirmative relief, and afterwards a stipulation was signed and filed, whereby it was provided that upon the trial of the cause an account might be taken of the matters thus set up; that if a balance should be found in favor of the defendant, judgment in his favor for such balance might be entered; that the stipulation should be regarded as a compromise of the counterclaim, and that the counterclaim should be deemed stricken from the answer, -it was held that the clerk, in the absence of any direction from the court or defendant's counsel, was not authorized to enter an order, upon request of plaintiff, dismissing the action: People v. Loewy, 29 Cal. 264. But to prevent

plaintiff from dismissing the action, the counterclaim must be one on which defendant could obtain affirmative relief: Belleau v. Thompson, 33 Id. 496.

Nonsuit for failure to prove a cause sufficient to be submitted to the jury is allowed only where there is no evidence to prove some material point: Stoddart v. Vandyke, 12 Cal. 438; Copper Hill Mining Co. v. Spencer, 25 Id. 26. In Grant v. Baker, 12 Or. 329, the rule is laid down that there must be such a total failure of proof of a material issue as would require the court to set aside the verdict for want of evidence if the jury were to find for plaintiff, and this is the statutory rule; see § 247 [244]; see, to the same effect, Moore v. Murdock, 26 Cal. 525; Mateer v. Brown, 1 Id. 222; S. C., 52 Am. Dec. 303; Rudd v. Davis, 3 Hill, 287; Stuart v. Simpson, 1 Wend. 376; Demyer v. Souzer, & Id. 436; Wilson v. Williams, 14 Id. 146; S. C., 28 Am. Dec. 518; Fort v. Collins, 21 Wend. 109; Jansen v. Acker, 23 Id. 480; Geary v. Simmons, 39 Cal. 232. A party is certainly not entitled to a nonsuit where a prima facie case is made out against him: Salmon v. Olds, 9 Or. 488. And it is held that a nonsuit will not be granted where there is any evidence to sustain plaintiff's allegations: Southwell v. Beezley, 5 Id. 458; for then its sufficiency must be left to the jury: Ringgold v. Haven, 1 Cal. 117; Dalrymple v. Hanson, 1 Id. 127; Mateer v. Brown, 1 Id. 222; S. C., 52 Am. Dec. 303. In the last case the defendant moved for a nonsuit on the ground that the plaintiff had not proved a material fact by competent testimony; the court held the nonsuit properly refused. By the process of compulsory

nonsuit, the same end is arrived at as by "the cumbrous and complicated machinery of a demurrer to evidence": Ringgold v. Haven, 1 Cal. 113. Plaintiff's examination in chief and crossexamination must all be considered in deciding whether he has proved a sufficient case: Mastin v. Griffing, 33 Id. 116. Plaintiff may be nonsuited as to some defendants, and the evidence go to the jury as to others: Acquital v. Crowell, 1 Id. 193. And in ejectment it is error to refuse a nonsuit to such defendants as were not in possession, that being an essential fact: Garner v. Marshall, 9 Id. 268. To avoid a nonsuit there must be more than a mere scintilla of evidence. Where there is so little that the court might well hold that it would not sustain a verdict in plaintiff's favor, a nonsuit is proper: Coggswell v. Oregon & C. R. R. Co., 6 Or. 417; Ensminger v. McIntire, 23 Cal. 594. In Wilson v. S. P. R. R., 62 Id. 164, 172, the court said that a nonsuit should not be granted "unless there is no evidence at all or a mere scintilla of evidence wholly insufficient for the consideration of the jury." Where incompetent evidence is admitted without objection, the court will treat it as competent on a motion for a nonsuit: Jacobsen v. Siddell, 12 Or. 280.

It has been said that the practice of granting a nonsuit on the opening statement should be discouraged: Emmerson v. Weeks, 58 Cal. 353. But judgment of nonsuit on opening statement will be affirmed in the absence of any statement or bill of exceptions showing on what the court acted: Nicholl v. Littlefield, GO Id. 238. In counsel's argument in this case various decisions are collated, in which it was held not error to nonsuit on the opening statement. The rule that in an action for negligence the burden of proof is on defendant to show that contributory negligence is a matter to be proved by defendant, does not preclude the court from directing a nonsuit when the evidence introduced by plaintiff so conclusively establishes the defense that the court would grant a new trial in case of a verdict in his favor upon the like evidence: McQuilken v. C. P. R. R. Co., 50 Cal. 8. That causes of action are not separately stated, or that a cause of action is against public policy, are neither of

them grounds on which defendant can move to dismiss: Watson v. S. F. etc. Co., 50 Id. 523. But that the complaint does not contain a cause of action, and the plaintiff declines to amend, is a good cause for moving, when the case is called for trial, to dismiss the action: King v. Montgomery, 50 Id. 115. That possession of defendant must be proved in ejectment or nonsuit will be granted, sce also Shaeffer v. Matzen, 50 Id. 652. Nonsuit was granted where plaintiff failed to connect a defendant with the transactions which were alleged to make him a partner: Clark v. Ritter, 50 Id. 669.

Defendant must specify the grounds of his motion for nonsuit. This he must do in analogy to the practice on objecting to the introduction of testimony: Mateer v. Brown, 1 Cal. 222; S. C., 52 Am. Dec. 303; Kiler v. Kimball, 10 Cal. 268; People v. Banvard, 27 Id. 474; Sanchez v. Neary, 41 Id. 485; Coffey v. Greenfield, 62 Id. 603; and defendant will not be allowed to raise a fresh point afterwards in the supreme court: Raimond v. Eldridge, 43 Id. 506; Johnson v. Moss, 45 Id. 518. Unless the grounds are specified, it is not error to overrule the motion; and if the grounds of the motion do not appear of record, the supreme court will not consider it: Poehlmann v. Kennedy, 48 Id. 201.

If defendant, after having moved for a nonsuit, introduces evidence which enables plaintiff to supply the defects in his evidence, he waives his right to a nonsuit: Bennett v. Northern Pac. Exp. Co., 12 Or. 49; Ringgold v. Haven, 1 Cal. 109; Smith v. Compton, 6 Id. 26; Perkins v. Thornburgh, 10 Id. 190; Winans v. Hardenbergh, 8 Id. 293.

On motion by defendant for nonsuit it seems the court may offer terms: May v. Hanson, 5 Cal. 366; S. C., 63 Am. Dec. 135.

A judgment on nonsuit must not be entered as a judgment on the merits. Defendant might proceed with his own case and get judgment on the merits. He waives this by moving for nonsuit: Wood v. Raymond, 42 Cal. 645.

If there is an intervenor in an action who claims an interest in the property in dispute, adverse to both the plaintiff and defendant, and the plaintiff answers the intervention, raising material issues, his right to be heard on those issues is not affected by a non

Judgment for failure to answer. -The relief granted cannot exceed that claimed in the complaint: Raun v. Reynolds, 11 Cal. 19; Parrott v. Den, 34 Id. 81; and if it does the judgment is erroneous, but is not void: Chase v. Christianson, 41 Id. 256; and may be amended or modified: Gamble v. Voll, 15 Id. 510; Oak land v. Whipple, 44 Id. 305; Lacore v. Leonard, 45 Id. 394. Where two defendants contracted merely as agents for another, judgment against them was held erroneous: Shaver v. Ocean M. Co., 21 Id. 46. In ejectment, where the court found that the plaintiff had title in the whole tract sued for, but defendant had possession of part only of it, judgment against defendant for the whole tract was upheld: Vallejo v. Fay, 10 Cal. 378; see Coleman v. Doe, 2 Scam. 251; Little v. Bishop, 9 B. Mon. 240, where the complaint alleged that all the defendants except two had interests in the land, and prayed that the "defendants" convey to plaintiff the interest he claimed, and the action was dismissed as to the two, and the other defendant required to convey to plaintiff the amount claimed, the relief was held not in excess of the prayer: Brooks v. Carpenter, 53 Cal. 287.

Defendant being notified in the summons of the amount for which plaintiff can take judgment by default, if default is made, judgment may be entered for the amount claimed, though the damages be unliquidated: Hartmann v. Williams, 4 Cal. 255. No writ of inquiry or other assessment of damages is necessary, unless the court so order. Dimick v. Campbell, 31 Id. 239. And the court may refer the question of damages if it please: Emeric v. Tams, 6 Id. 156. Á judgment on default for damages where none are prayed for is erroneous, although the complaint states facts sufficient to sustain a judgment for damages: Pitts C. M. Co. v. Greenwood, 39 Id. 71.

In cases arising under this section, the clerk has power to enter judgments without judicial intervention or direction: Graydon v. Thomas, 3 Or. 250. His acts are ministerial, and not judicial: Id.; Willson v. Cleaveland, 30 Cal. 192; Gray v. Palmer, 28 Id. 416; Wallace v. Eldredge, 27 Id. 495; Kelly v. Van Austin, 17 Id. 564; Leese v. Clark, 28 Id. 33; therefore he can enter judg ments though the judge be disquali

fied: People v. Carrillo, 35 Id. 40. Feb. 21, 1891, Judgments entered by the clerk will $1. not be opened or set aside for slight informalities: Graydon v. Thomas, 3 Or. 250. Service of process must appear to justify a nonsuit if there is no appearance, and such process must be sufficient: Willamette F. Co. v. Clark, 1 Id. 13; Smith v. Ellendale Mfg. Co., 4 Id. 70; and it is the duty of the clerk to see that the summons has been served, and no appearance entered: Glidden v. Packard, 28 Cal. 650; that the time for answering has expired, and that the other requirements of the statute are fulfilled: Willson v. Cleaveland, 30 Id. 198.

Judgment by default where the record shows a demurrer undisposed of is error: Willamette F. Co. v. Smith, 1 Or. 181; Tregambo v. Comanche M. M. Co., 57 Cal. 501. Where a demurrer has been sustained, a judgment for failure to answer an amended pleading is erroneous if no notice of the amendment has been given: Tolmie v. Otchin, 1 Or. 95. If after default is entered the plaintiff amend the complaint in matter of substance, such amendment must be served, even on the defaulted defendant, the default on the original pleading being opened by the amendment: Thompson v. Johnson, 60 Cal. 292. But the court may substitute in place of the plaintiff one who has acquired his rights without giving notice to the defendant whose default has been entered: Farrell v. Jones, 63 Id. 194. Entry of default after demurer overruled was held regular, although no notice of the overruling of the demurrer had been served in writing on the defendant, where his attorney was present in court and asked time in which to answer: Barron v. Deleval, 58 Id. 95. If defendant answer or demur before default is entered, but after the time has expired, it is at most an irregularity: Bowers v. Dickerson, 18 Id. 421.

The judgment containing a recital of personal service of process on defendant is valid, although the certificate of service of the summons in the record does not show a sufficient service: Quivey v. Baker, 37 Cal. 465. A default judgment has the same effect as res adjudicata as would a judgment on the merits: Neil v. Tolman, 12 Or. 289.

It has been held that a judgment for want of answer is not appealable: Smith v. Ellendale, 4 Or. 70; Trullenger