Z. Cloukie, Appellant, v. Elsie M. Semple, Respondent

[No. 12893. Department Two. December 11, 1915.] Z. Cloukie, Appellant, v. Elsie M. Semple, Respondent. Dismissal and Nonsuit—Failure of Proof—Judgment—-Affirmative Relief. Upon the granting of a nonsuit for failure of proof at the conclusion of plaintiff’s testimony, it is error to enter findings of fact supporting the affirmative allegations of defendant’s answer and to enter judgment thereon, as the same could he pleaded in bar; the proper judgment being one of dismissal without ¡prejudice. Appeal from a judgment of the superior court for King county, Humphries, J., entered September 16, 1914, upon findings in favor of the defendant, after granting a nonsuit for failure of proof, tried to the court. Reversed. Parker & Kalina, for appellant. Roney & Loveless, for respondent. Reported in 153 Pac. 319. [MAJORITY — Holcomb, J.] Holcomb, J. At the trial below, upon the conclusion of plaintiff’s testimony, defendant moved for a nonsuit for failure of proof on the part of plaintiff, and defendant offered no testimony. Thereafter the trial judge made affirmative findings of fact supporting the affirmative allegations of defendant’s answer, and conclusions of law in conformity therewith, and entered judgment, referring to the findings and conclusions, and adjudged that “plaintiff take nothing under his complaint herein and that the said complaint be dismissed.” It is conceded by respondent that she was not entitled to any affirmative relief upon a nonsuit for failure of proof on the part of appellant, but that appellant is not injured, for he can treat the judgment as a mere judgment of dismissal or nonsuit and govern himself accordingly. The difficulty is that the record does not so warrant. In any future action, this judgment could be effectively set up and pleaded in bar, and present counsel for respondent, however honorable and ethical, might not have control of the matter. The judgment is reversed, and the cause remanded with instructions to enter an order or judgment annulling and setting aside the findings of fact and conclusions of law entered thereon, and enter a simple judgment of nonsuit and dismissal of the cause without prejudice. Appellant will have his costs of appeal. Morris, C. J., Bausman, Parker, and Main, JJ., concur.