Sec. 52-80. Nonsuits and withdrawals; costs.

If the plaintiff, in any action returned to court and entered in the docket, does not, on or before the opening of the court on the second day thereof, appear by himself or attorney to prosecute such action, he shall be nonsuited, in which case the defendant, if he appears, shall recover costs from the plaintiff. The plaintiff may withdraw any action so returned to and entered in the docket of any court, before the commencement of a hearing on the merits thereof. After the commencement of a hearing on an issue of fact in any such action, the plaintiff may withdraw such action, or any other party thereto may withdraw any cross complaint or counterclaim filed therein by him, only by leave of court for cause shown.

(1949 Rev., S. 7801.)

Notation

After nonsuit, the cause cannot be reinstated without notice to, or consent of, both parties. K. 361. Entry for costs to be made during the term. Id., 269; 35 C. 4. Proof of withdrawal. 14 C. 174. Petition cannot be withdrawn after judgment pronounced; K. 273; but may be after report of committee is known, though not filed. 25 C. 136. Right to withdraw suit or to be nonsuited, not affected by plea of set-off and claim of judgment thereon. 43 C. 61. After case has been heard and reported by committee, it cannot be withdrawn. 47 C. 436. Judgment treated as rendered at time of withdrawal and not when costs are taxed. 48 C. 301. Withdrawal of justice suit after return of writ cannot deprive defendant of his right to a judgment for costs. 57 C. 270. Nonsuit proper for failure of plaintiff to plead over; 72 C. 257; or to produce evidence; discretion of court; 75 C. 314; or to prosecute action. 71 C. 339. Withdrawal after filing of counterclaim or set-off. 76 C. 530; 80 C. 218. Plaintiff may withdraw actions without knowledge of attorney; and in vacation. 78 C. 659. Withdrawal after answer filed as creating estoppel. 80 C. 504. Of right of withdrawal in general. 85 C. 673. Cited. 123 C. 18. Case withdrawn may be restored to docket by court on proper showing during term at which withdrawal filed. Id., 166. After commencement of hearing, it is within discretion of court to deny motion to withdraw cross complaint. 125 C. 472. Cited. 142 C. 713; 152 C. 699; 154 C. 289. Petition for winding up is “action” to which section applies. 171 C. 699, 701. Right of plaintiff to withdraw action terminates not with completion by appraiser of his report, but with commencement of procedures to be followed in arriving at appraisal. Id., 699, 703. Since appraiser never appraised value of plaintiff's shares in corporation or value of real estate as of appropriate date, and in absence of any specific order specifying power and authority of appraiser pursuant to Sec. 33-384, determination of value of corporation's real estate did not amount to “hearing of an issue of fact” as would terminate plaintiffs' right to withdraw their action. Id., 700, 704. Cited. 194 C. 400.

Cited. 5 CA 101; 13 CA 150; 24 CA 93; 26 CA 426; 37 CA 515; 44 CA 771. Trial court improperly restored case to docket; trial court lacked subject matter jurisdiction because no appraiser had been appointed to assess the value of the corporation, and thus no fact-finding had occurred. 54 CA 384. In a habeas action, the court erred in determining that a hearing on the merits, for purposes of section, commences immediately upon the judge taking the bench on the day of the trial and, on the basis of this erroneous construction, improperly denied petitioner's request to withdraw petition without prejudice; with respect to a hearing on the merits, a party's right to unilaterally withdraw an action or petition ceases when the presiding authority begins or initiates formally a proceeding in which it will make a substantive determination concerning the legal or factual issues in the case. 162 CA 23. Broad authority granted to plaintiff pursuant to section to unilaterally withdraw action prior to hearing on the merits does not automatically extend to plaintiff the additional right to commence an essentially identical action following that withdrawal if primary purpose for doing so is to undermine a court order rendered in the prior litigation or if withdrawal and subsequent refiling implicates a substantial right that vested in another party to the litigation and that likely will be jeopardized should plaintiff proceed with the new action; in either instance, if seasonably requested by defendant or other third party, the court should exercise its discretion to restore the original action to the docket. 163 CA 100.

Cited. 4 CS 165; 6 CS 195. Withdrawal of divorce action with respect to alimony and support payments discussed. 16 CS 88. Section applicable to condemnation proceedings. Id., 230. Plaintiff failed to make a timely claim for a jury trial so case withdrawn and a new suit immediately commenced for same cause of action; on motion of defendant, the original case was restored to the docket. 21 CS 371. Court has continuing jurisdiction to determine any claim of a vested right acquired during the pendency of an action and prior to its withdrawal, but it must first reinstate it on the docket before granting the relief sought. Id., 497.

Plaintiff's move to withdraw action denied where memorandum of decision had previously granted defendant judgment on his demurrer. 5 Conn. Cir. Ct. 439. Where case has been voluntarily withdrawn, court does not have jurisdiction to entertain motion to reopen until steps are taken to restore case to docket. 6 Conn. Cir. Ct. 91, 92. Trial court alone has power to open, set aside, vacate or modify judgment, and exercise of that power is unaffected by taking of appeal; if case has gone to judgment, motion to withdraw cannot be entertained until after judgment is opened and vacated. Id., 168, 169.