#### Frank Keishkowski, v. Harry Bostrom, Appellant, on appeal of Harry Bostrom. John W. Sutton, Petitioner, Appellee.

Gen. No. 20,308.

(Not to he reported in full.)

Appeal from the Circuit .Court of Cook county; the Hon. Charles H. Bowles, Judge, presiding.

Heard in the Branch Appellate Court at the March term, 1914.

Reversed and remanded.

Opinion filed April 22, 1915.

Statement of the Case.

Frank Keishkowski sued the appellant, Harry Bostrom, in the Circuit Court of Cook county and recovered a judgment ag’ainst him for seven hundred dollars. John W. Sutton was the attorney of record for Keishkowski in the said suit. The appellant took an appeal from the said judgment, and while the same was pending, Keishkowski, against the advice and wishes of Sutton, settled the judgment for one hundred and fifty dollars. Seventy-five dollars of this amount was *13offered to Sutton in full of all claims for legal services he might have against Keishkowski hut he refused the offer, staling that he had a contract with Keishkowski by the terms of which he was entitled to one-half of the amount of the judgment. Sutton then filed in the Circuit Court of Cook county a petition to enforce against the appellant, Harry Bostrom, a claim for attorney’s lien, under section 55, ch. 92, Hurd’s R S. (J. & A. 611). The appellant filed an answer to the said petition. A jury was waived and the cause was submitted to the court. Evidence was presented in support of the petition and the answer, and thereafter “the court listened to arguments of counsel * * * at the conclusion of which the court stated

he would render his decision later.” Thereafter the court notified both parties that he would render his decision in the case on August 27, 1913. On" the last mentioned date, the parties to the proceedings being-represented in court by counsel, the court announced that he found that the petitioner Sutton had failed to prove his case, and that there wonld have to be a finding against the petitioner and in favor of the defendant. Thereupon, the attorney representing Sutton asked for a continuance of the case on account of the absence of Sutton, and the court granted the request. On October 16, 1913, the following occurred: “This case again was called for rendering of decision by the court; all parties present. John W. Sutton then asked leave of court to withdraw his petition and take a non-suit, to which request the defendant by his attorney objected, stating as grounds therefor, that as the petitioner and the defendant had both argued the case fully to the court, submitted their briefs and authorities, and that the case has been fully and finally submitted to the court for final decision which the court was now ready to render, the petitioner is not now entitled to withdraw his petition, dismiss or non-suit his case; and as the court had announced his readi*14ness to render Ms decision, and even expressed what the decision would be, this case shouM now be decided by the court and not dismissed.” The trial court overruled the said objection of the defendant and granted leave to the petitioner “to withdraw and dismiss his petition and non-suit his case,” which was done over the objection of the defendant. This appeal followed.

Abstract of the Decision.

Dismissal, nonsuit and discontinuance, § 15*—when nonsuit must be talcen on trial by court. Under R. S., ch. 110, sec. 70 (J. & A. ¶ 8007), where a case is tried before the court without a jury and is submitted for final decision, the plaintiff cannot take a nonsuit.

O. C. Peterson, for appellant.

No appearance for appellee.

Mr. Justice Scanlan

delivered the opinion of the court.