Clark v. Steamboat Mound City

• Citation: 9 Mo. 146
• Parties: TILGHMAN CLARK v. STEAMBOAT MOUND CITY.
• Decision Date: 31 January 1845
• Court: United States State Supreme Court of Missouri

9 Mo. 146

TILGHMAN CLARK

v.STEAMBOAT MOUND CITY.

Supreme Court of Missouri.

January Term, 1845.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

CROCKETT & BRIGGS, for Appellant.

A. TODD, for Appellee.

TOMPKINS, J.

This is an action commenced under the statute entitled, “An act to provide for the collection of demands against Boats and Vessels,” Digest of 1835, p. 102. Judgment was given for the plaintiff, and the defendant appealed to the Court of Common Pleas. In this last court judgment was given for appellant, the Steamboat, and to reverse it, the cause is brought by appeal to this court. The complaint is in the words following, to-wit: Tilghman Clark complains, that he has a demand against the steamboat Mound City, amounting to seventy-nine dollars and eighty-seven cents, which demand accrued against the steamboat on account of the owners thereof, and is in all particulars, as follows, to-wit: “Due Mr. T. Clark, 79 87-100 dollars. March 10, 1843.” It was signed by Clark, &c.

The cause was submitted to the court, neither party requiring a jury. The plaintiff offered in evidence the note filed with the papers below, as follows: “Due Mr. T. Clark 79 87-100 dollars. March 10, 1843, (signed) Charles Barger, Clk.” He proved that Charles Barger was clerk of the steamboat Mound City, while he served that boat, &c.

The defendant introduced no testimony, but moved the court to non-suit the plaintiff for defect in the plaintiff's complaint. The counsel for the plaintiff prayed leave to amend his complaint, and it was refused. The court then ordered a non-suit, although the defendant was present by his attorney. To this decision of the court the plaintiff excepted, and moved, for reasons filed, to set aside the non-suit, and for a new trial, and for leave to amend the complaint. The motion was overruled by the court.

The counsel for the appellee, cites several authorities from New York Reports to show that the decision was correct. It is not deemed necessary to examine how courts of New York would decide in such a case. The common law is introduced by our statutes into this State, and by it no plaintiff can be forced to take a non-suit: the taking of a non-suit is a voluntary act. Wells v. Gaty and others, decided at the last term of this court; where it is said the court cannot compel a plaintiff to submit to a non-suit, they may advise and direct him to be called, but if he refuses to suffer a non-suit, the court cannot otherwise protect and enforce their opinion, but by awarding a new trial, if the jury find against their direction. 5 Bacon, 140, title Non-suit, letter A; and Tidd's Pr. 996.^(a)

It is an evasion of our own statute regulating Practice in the Supreme Court, to order a plaintiff in the Circuit Court to submit to a non-suit. The...