Carter v. O'Neill

• Decision Date: 09 November 1903
• Citation: 76 S.W. 717,102 Mo. App. 391
• Parties: CARTER v. O'NEILL.
• Court: Missouri Court of Appeals

76 S.W. 717

102 Mo. App. 391

CARTER v. O'NEILL.

Court of Appeals at Kansas City, Missouri.

November 9, 1903.

VOLUNTARY NONSUIT—RECORD—RECITALS— TRIAL—FAILURE TO EXCEPT.

1. Where defendant demurred to the evidence, and the court stated that he was inclined to sustain the demurrer, whereupon plaintiff took a nonsuit, it was voluntary, so that plaintiff could not appeal.

2. A recital in the record that plaintiff suffered an involuntary nonsuit is not sufficient to establish that fact.

3. Plaintiff cannot, on appeal, object to an alleged involuntary nonsuit, where he did not except to such ruling.

Appeal from Circuit Court, Jasper County; Joseph D. Perkins, Judge.

Action by S. E. Carter against James O'Neill. From a judgment for defendant, plaintiff appeals. Affirmed.

H. W. Currey and W. R. Robertson, for appellant. Galen & A. E. Spencer, for respondent.

BROADDUS, J.

The plaintiff brought suit on seven different counts of his petition, five of which were for damages to his real property, and two founded in equity. By agreement of parties the cause was tried on the first five counts. On the trial plaintiff introduced evidence for the purpose of sustaining the allegations of his petition in the first five counts aforesaid. At the close of the plaintiff's case the defendant, in writing, asked the court to instruct the jury on each of said counts, specifically, to find a verdict for defendant. The bill of exception then recites as follows: "Thereupon, the court announcing his intention to give said instruction, the plaintiff was forced to, and did, take a nonsuit, with leave to move to set the same aside." The defendant claims that, under the record, plaintiff took a voluntary nonsuit, and therefore he has no right to appeal. Plaintiff insists that the case is similar to that of Kelly-Goodfellow Shoe Co. v. Prickett, 84 Mo. App. 94, decided by this court. In that case the trial judge announced that he would sustain defendant's demurrer, whereupon plaintiff took nonsuit with leave, etc. The judge who delivered the opinion, in commenting on the language used by the trial judge, construed it to mean, "not that in the future" he would sustain the demurrer, "but that he did sustain it"; and "such was the evident understanding of counsel, for he excepted to the ruling, and such was the understanding of the court, for it allowed such exceptions." But the record is somewhat different here, for the court did not say that it would sustain the demurrer, but that it was inclined to do so, which is not equivalent to having said it would then do so, or that it did sustain it. And there is furthermore this difference in the two cases: In the former the plaintiff excepted to the ruling of the court, but the plaintiff here did not. In McClure v. Campbell, 148 Mo. 96, 49 S. W. 881, it was held that, "until an...