1. While a plaintiff may become nonsuit us a matter of right before opening to the jury, leave to become nonsuit after a case is opened is within the discretion of the Trial Court.
2. Where there was objection to voluntary nonsuits in tax abatement appeals, and before hearing on the objection the plaintiffs proceeded to trial upon the appeals and presented testimony before the Tax Commission to which the appeals had been referred, the Superior Court could properly find that the plaintiffs waived their right to become nonsuit, and did not err in denying nonsuits in the Court's discretion.
DUNCAN, J.
It has been settled in this jurisdiction since Judge of Probate v. Abbot, 13 N.H. 21, "that the plaintiff may become nonsuit as a matter of right before opening to the jury." Leonard v. Fahey, 87 N.H. 170, 171. See Barrett v. Cady, 78 N.H. 60, 63; Webster v. Bridgewater, 63 N.H. 296; Annot. 89 A.L.R. 13, 23. After a case is opened "leave to become nonsuit is within the discretion of the court." Ingalls v. Railroad, 83 N.H. 397. The Court in this case could properly find that by proceeding to trial upon the appeals in question and presenting testimony before the Tax Commission, the plaintiffs had waived their right to become nonsuit, and could not assert that justice required nonsuits to be permitted in the Court's discretion. Ingalls v. Railroad, supra, 398-399; Saykaly v. Manchester, 97 N.H. 4; Dorney v. Dorney, 98 N.H. 159, 160. See Maryland Casualty Co. v. Martin, 88 N.H. 346. They "could not at the same time invoke the judgment of the Court upon the merits . . . and deny its jurisdiction." Dolber v. Young, 81 N.H. 157, 159.
Exception overruled.
LAMPRON, J., did not sit; the others concurred.