80 Mo. 431 (Mo. 1883), Lee v. Kaiser

Citation:80 Mo. 431
Opinion Judge:MARTIN, C.
Party Name:LEE v. KAISER, Appellant.
Attorney:Hamilton & Fisher for appellant. Smith & Krauthoff for respondent.
Court:Supreme Court of Missouri
 
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Page 431

80 Mo. 431 (Mo. 1883)

LEE

v.

KAISER, Appellant.

Supreme Court of Missouri.

October Term, 1883

Appeal from Cole Circuit Court. --HON. E. L. EDWARDS, Judge.

AFFIRMED.

Hamilton & Fisher for appellant.

A nonsuit could not be taken in a case once tried upon its merits--an appeal case. McKnight v. Taylor, 1 Mo. 282, and cases cited; R. S., § 3556. No notice of appeal was given until within three days of the second term after it was taken, and the appellee had the right to have the judgment of the justice affirmed or the appeal dismissed. R. S., § 3057. Failure to give notice of the appeal amounts to a failure to prosecute. Wag. Stat., p. 850, § 21. And failure to give notice before the second term after appeal taken, will authorize an affirmance of the judgment. Wag. Stat., p. 344, § 16; Rowley v. Hinds, 50 Mo. 401; Page v. Railroad Co., 61 Mo. 78; R. S., § 3057; McCabe v. La Compte, 15 Mo. 78. Defendant was an indorser after maturity, and was entitled to notice of demand and non-payment. Light v Kingbury, 50 Mo. 331; Wade on Notice p. 338, § 738; Ib., p. 339, § 739.

Smith & Krauthoff for respondent.

Defendant's position that the judgment of the justice constituted a bar to this action, cannot be maintained. Upon appeal the circuit court became possessed of the cause, and it was its duty to try it anew. 2 Wag. Stat., p. 849, § 13; R. S., § 3052; Cates v. Akerd, 5 Mo. 124; Ser v. Bobst, 8 Mo. 506; Compton v. Parsons, 76 Mo 455, and cases cited; Gant v. Railroad Co., 79 Mo. 502; Fitterling v. Railroad Co., 79 Mo. 504; Turner v. Northcutt, 9 Mo. 252; Moore v. Otis, 18 Mo. 118. It has been so ruled in other states under statutes similar to ours. Harris v. Laird, 25 Iowa 143; Railroad Co. v. Sater, 1 Iowa 421; Borden Mining Co. v. Barry, 17 Md. 419, 428. A nonsuit may be taken at any time before final judgment, and the effect of a nonsuit is to leave the plaintiff at liberty to bring a new action. Holland v. Hatch, 15 Ohio St. 464, 469; Foot v. Martin, 1 Met. 273, 274; Knox v. Waldborough, 5 Greenl. (Me.) 185; Delaney v. Reade, 4 Iowa 292,295; Jones v. Underwood, 35 Barb. 211; Haws v. Tiernan, 53 Pa.St. 192, 194. Nor was plaintiff's right to take a nonsuit affected by the pendency of defendant's motion to affirm. Audobon v. Ins. Co., 23 N.Y. 216; Carlisle v. McCall, 1 Hilt. (N. Y.) 399; Horner v. Brown, 16 How. 354. Prior to the taking of the...

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