#### E. Hill Turnock v. M. H. Walker.

1. Non-Suit—When the Trial is Without a Jury.—When a case is tried by the court without a jury a party may take a non-suit at any time before a note has been made of the finding of the court.

Memorándum. — Assumpsit for work, labor and services. Appeal from the Circuit Court of Cook County; the Hon. Edward E. Dunne, Judge, presiding.

Heard in this court at the March term, 1894.

Reversed with directions.

Opinion filed June 4, 1894.

*375James Turnock, attorney for appellant.

William D. Rawlins and John S. Stevens, attorneys for appellee.

Mr. Justice Waterman

delivered the opinion of the Court.

In this cause, a jury having been waived, the trial was before a judge of the Circuit Court. In the record is the following:

> a Be it remembered that the above cause came on for trial before the Honorable Edward F. Dunne, judge of said court, without a jury, jury being waived by agreement of parties. The court, after hearing all the evidence on behalf of each party, and argument of counsel, then and there proceeded to render his decision orally. While the court was thus rendering his decision, and after he had clearly intimated what his findings would be, but before his finding ivas concluded, or any note of the finding ivas made, plaintiff, by his counsel, moved the court for a non-suit, which said motion the court then and there denied, to which said ruling of the court in refusing to allow plaintiff to take a non-suit, plaintiff, by his counsel, then and there excepted.

> “ Thereupon the court found the issues for defendant and rendered judgment against plaintiff, to which said finding and judgment plaintiff, by his counsel, then and there excepted.”

When a case is tried without a jury a party is entitled to take a non-suit when the same is moved for before a note has been made of the finding of the court. Adams v. Shepard, 24 Ill. 464; Howe v. Harroun, 17 Ill. 494; Shabad v. Hanchett, 40 Ill. App. 545; Prindiville v. Leon, 11 Ill. App. 657; Wilson Sewing, etc., Co. v. White, 10 Ill. App. 191.

The judgment of the Circuit Court is reversed and the cause remanded, with directions to permit the plaintiff to take a non-suit; if the plaintiff fail to take a non-suit, the judgment must be as before. Reversed with directions.