On appeal from the Supreme Court.
For the plaintiffs-appellants, Siegel & Benjamin (Melvin J. Koestler and Sidney J. Benjamin, of counsel).
For the defendant-respondent, Lum, Tamblyn & Fairlie (James Raymond Berry, of counsel).
The opinion of the court was delivered by
BROGAN, CHIEF JUSTICE. This is an appeal from a judgment of nonsuit. Plaintiffs' claim was for damage to and destruction of its stock and materials which were insured against loss or damage by fire, by the defendant company.
During the course of the trial, plaintiffs' counsel, addressing the court, said, "* * * I think that I will submit to a voluntary nonsuit," to which the court replied, "of course,
you have a legal right to do that," and counsel continued "I want to do it * * *." Accordingly, such judgment was entered.
Twelve grounds of appeal were written down as reasons for a reversal of the judgment. They are argued under three headings. The first, in substance, is as follows: That plaintiffs' attorney had no right to submit to a voluntary nonsuit, and the refusal of the trial court to set aside the nonsuit on rule to show cause was an abuse of discretion on the part of the court.
The second is that the plaintiff has a meritorious cause of action, and the third that the issues to be tried were properly presented by the pleadings and no amendment to the reply was required. The appellants continue in the alternative to further state their point in these words: "If the trial court deemed an amendment to reply necessary in order to permit the full trial of the issues of the case upon the merits, then it was incumbent upon the trial court to permit such amendment."
It will be readily perceived that the second and third points are most irregular in form and of no value as grounds on appeal since they do not challenge any ruling of the court.
The third point, however, refers in part to the first four grounds of appeal. These grounds were directed at the court's refusal to allow plaintiffs to amend their reply. It appears that during the conduct of the case plaintiffs' counsel conceived that the reply should be amended. There was no objection on the part of defense counsel, but the court, for reasons of its own, declined to permit the amendment. No exception was taken to the court's ruling on the matter and, consequently, this judicial action cannot now be attacked as error.
The second point made does not seem to be in support of any of the stated grounds of appeal, and a studious reading of the argument made under this heading ...