KIDD et ux. v. McCRACKEN et al., 150 S.W. 885

DIBREEL, J. This is a suit by plaintiff's, C. C. Kidd and wife, against Joe H. Mc-Cracken et al., begun in the district court of Parker county, for the purpose of declaring an instrument a mortgage which upon its face purports to be a deed, and to enjoin a sale of the property described in the such instrument. Defendants answered by general denial and special plea that the property was purchased outright, and in good faith for full value. There was no plea of or prayer for affirmative relief. The case was tried before the court without a jury, and judgment entered for defendants.

Plaintiff's sought to take a nonsuit, as contended by them, before the decision of the court was announce!!, and the sole question before this court for decision is whether the nonsuit was, under the facts of the case, wrongfully denied plaintiffs.

Article 1955, Revised Civil Statutes 1911 (article 1301, R.

S. 1895), on the subject of nonsuit, is as follows: “At any time before the jury have retired, the plaintiff may take a nonsuit, but he shall not thereby prejudice the right of an adverse party to be heard on his claim for affirmative relief; when the .case is tried by the judge such nonsuit may he taken at any time before the decision is announced.” The bill of exceptions taken by plaintiffs discloses the facts, and will be here copied, as follows: “Be it remembered that on the trial of this, cause, a jury having been waived and the matters of fact as well as of law having been submitted to the court, on the afternoon of the18th day of November, A.

D. 1909, after the evidence was all in, and after the argument of counsel had been concluded, the court announced that it would take the matter under advisement and render his decision on the following morning. . And be it remembered that on the following morning, to wit, on the 19th day of November, A. D. 1909, when court was called, the plaintiff O. O. Kidd requested and was granted permission to submit some further remarks.

And be it further remembered that at the conclusion of said Kidd’s remarks the court made the following state; ment, viz.: T do not think there can be any question from the evidence but that John Mc-Cracken came down here as the agent of Joe McCracken (defendant) .to buy the property -in question; so the only question in the case -in my mind is as to whether the instrument ■in controversy was intended as a mortgage or as an outright sale.

I do not believe that the decisions, wherein it is said that the proof, in order to set aside a deed, must be clear and satisfactory, places on plaintiffs a greater burden than to prove by a preponderance of the evidence that the deed was intended and understood by the parties to be a mortgage. I think the language to that effect in some of the decisions means in the light of the decisions read by Mr.

Hood that it must be clear to the court that the preponderance of the evidence is in plaintiffs’ favor, and it is not clear to my mind that the preponderance of the evidence is in favor of the plaintiffs’ contention that the instrument was a mortgage. It is true the plaintiffs have one more witness than the defendant in favor of the instrument’s being a mortgage, but all the written testimony in the case bears out the contention of the defendant. And I admitted certain testimony conditionally; that is, I stated that I would hear it, and announce my ruling later as to whether I would consider it or not.

I will have the stenographer come in and have him take down my ruling in regard to this testimony.’ And be it further remembered that at this point counsel for plaintiffs moved the court to permit plaintiffs to withdraw their announcement of ready for trial and take a nonsuit, which request of plaintiffs’ counsel was refused by the court, and the court proceeded then and there to announce his findings and decision and to render judgment on the whole case, to wit, that plaintiffs take nothing and that defendants go hence without day and recover their costs; and be it further remembered that in said cause said defendants, nor either of them, had sought or asked for affirmative relief; and be it further remembered that when plaintiffs’ counsel moved the court to permit plaintiffs to withdraw their announcement of ready for trial and take a nonsuit the court had not announced its decision; except as above set out.” From the foregoing statement it is clear to our minds that at the time plaintiffs asked to take a nonsuit the court had not announced his decision.

If this is true, then it was plaintiffs’ right, secured by the statute above quoted, to have their case nonsuited. It seems to us to be immaterial to the exercise of the right to take a nonsuit that the plaintiff is made aware of the court’s view of the case from the expression of the court’s opinion, or from any other source. Such knowledge may serve as the vital reason why the party desires to get his case out of court. His information of how the court will decide cannot affect the plaintiff’s right to a non-suit, where the decision has not been announced.

The statute is plain upon the subject, and we think does not mean that the plaintiff is denied the right to a nonsuit whqrte he gathers from the opinion of the court in discussing the case what his decision will be. That is not the language, nor is it the meaning of the law. There is a wide and well-recognized legal difference between the “opinion” and the “decision” of a court.

The strongest ease that can be made against plaintiffs under, the undisputed facts is that the court in' discussing the 'evidence and the law expressed an opinion that would lead naturally to the conclusion that he intended at the proper time to decide the case adversely to plaintiffs. However, the time had not arrived for him to announce his decision, for he had yet to pass upon the admissibility of certain testimony that had been admitted conditionally, and his decision of the case upon its merits was yet suspended.

The word, “decision,” as used in the statute, means the court’s judgment, which is made a part of the record immediately upon its rendition, but the court’s opinion of the different phases of the case is nothing more than an expression of the judge’s views. In the case at bar the judge at the time the nonsuit was demanded had done nothing more than to express his opinion of the case. He had not announced his decision or judgment. For a discussion of the legal distinction between the words, “decision” and “opinion,” upon which we rely,, see 13 Cyc. 427; 2 Words & Phrases, p. 1901; Craig v.

Bennett, 158 Ind. 9, 62 N. E. 273; Houston v. Williams, 13 Cal. 24, 73 Am. Dec. 565; Coffey v. Gamble, 117 Iowa, 545, 91 N. W. 813; In re Winslow’s Estate, 12 Misc. Rep. 254, 34 N. Y. Supp. 637. We are clearly of the opinion that the trial court should have permitted plaintiffs to have taken their nonsuit in compliance with their request, and that in the denial of that right a substantial injury has resulted to them. For the' reasons above indicated, the judgments- of the Court of Civil Appeals and the trial court will be reversed, and the cause remanded for further proceedings; and it is accordingly so ordered.