Mitchell v. Film Transit Co.

Alexander, J.,

delivered a specially concurring opinion.

I concur in the result reached in this case. I would prefer, however, to place emphasis upon the waiver of plaintiff, implicit in his proceeding to trial after his motion for nonsuit and dismissal was denied. His action in this respect was not compulsory, but the exercise of an option either to stand upon his motion, or to invoke the processes of the court in the trial of the cause upon its merits, in which trial he retained the right to procure a favorable judgment, as well as the right to stand upon same, if successful.

I do not think…