Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Lee J. Davis and Sweeney & Morehouse, for Appellant.
Roy W. Stoddard, for Respondent.
By the Court, Coleman, J.:
Appellant brought suit for divorce. An answer was filed, pleading a judgment of a court of the State of Maine as res adjudicata, to which a reply was filed,
admitting that the Maine court had jurisdiction of divorce actions, but denying that a judgment on the merits had been rendered. Upon the trial, and after the evidence in support of the allegations of the complaint had been submitted, a certified copy of the judgment of the court of the State of Maine was offered and received in evidence, over the objection of appellant, in support of the plea of res adjudicata presented in the answer mentioned. After all of the evidence had been received a judgment was rendered by the court, sustaining the plea of res adjudicata. It is from that judgment that an appeal is taken.
1. It is contended that the Maine judgment was nothing more than a judgment of non-suit, and that the trial court erred in admitting it in evidence. In support of this contention, counsel quotes from the case of Pendergrass v. York Mfg. Co., 76 Me. 509, and from numerous other authorities, among them the case of Laird v. Morris, 23 Nev. 34, 42 Pac. 11. On another phase of the case, counsel for appellant contend that, in the absence of pleading and proof as to what the law is in a sister state, we must presume that the law is the same as the law of this state. The authorities are practically unanimous in holding this to be the rule relative to the common law, but there is a wide difference of opinion on this question as to the statute law. (16 Cyc. 1084, 1085; 10 R. C. L. 895.) This court has never been called upon to lay down a rule as to what the presumption is as to the law of a sister state, and we do not deem it necessary to do so in this instance, for we are of the opinion that, no matter whether the common law or our statute controls, we are compelled to hold that the judgment of the Maine court was not one of non-suit. At common law non-suit was permissible only when the plaintiff did not appear to prosecute the action. Blackstone, who we believe is the most reliable authority as to the common law, says:
When they are all unanimously agreed, the jury
return back to the bar; and, before they deliver their verdict, the plaintiff is bound to appear in court, by himself, attorney, or counsel, in order to answer the amercement to which by the old law he is liable, as has been formerly mentioned, in case he fails in his suit, as a punishment for his false claim. To be amerced, or a mercie, is to be at the king's mercy with regard to the fine to be imposed. The amercement is disused, but the form still continues; and if the plaintiff does not appear, no verdict can be given, but the plaintiff is said to be non-suit. Therefore it is usual for the plaintiff, when he or his counsel perceives that he has not given evidence sufficient to maintain his issue, to be voluntarily nonsuited, or withdraw himself; and if neither he, nor any body for him appears, he is nonsuited, the jurors are discharged, the action is at an end, and the defendant shall recover his costs. The reason for this practice is that a non-suit is more eligible for the plaintiff than a verdict against him; for after a non-suit, which is only a default, he may commence the same suit again for the same cause of action; but after a verdict had, and judgment consequent thereupon, he is forever barred from attacking the defendant upon the same ground of complaint. But in case the plaintiff appears, the jury by their foreman deliver in their verdict. (Blackstone's Commentaries, Ed. 1768, p. 376.)
From this language we gather that at the common law, when a plaintiff discovered some error or defect in the proceedings, or was unable to prove an essential fact, for want of necessary witnesses or documentary evidence, and thereupon being called, and failing to appear, his default was recorded, upon which the defendant recovered his costs. But this arising from some supposed neglect or oversight, the plaintiff was not barred from commencing a new action. In the light of this interpretation, it will be seen that at common law the one essential of a non-suit was the abandonment of the case by the plaintiff. Strictly speaking, it seems that at common law there was no such thing as a judgment of
non-suit. In Poyser v. Minors, 7 Q. B., Div. 329, Hush, L. J., says:
A non-suit at common law was nothing more than a declaration by the court that the plaintiff had made default in appearing at ...