Bunting v. Stone

• Decision Date: 03 March 1913
• Citation: 169 Mo. App. 1,154 S.W. 807
• Parties: BUNTING v. STONE.
• Court: Missouri Court of Appeals

154 S.W. 807

169 Mo. App. 1

BUNTING v. STONE.

Kansas City Court of Appeals. Missouri.

March 3, 1913.

DISMISSAL AND NONSUIT (§ 5) — FINAL SUBMISSION.

Under Rev. St. 1909, § 1980, providing that a plaintiff may dismiss his case at any time before finally submitted to the jury or the court sitting as a jury, a plaintiff may dismiss where it appeared that, though counsel were to be allowed to file briefs, the court, before plaintiff's brief had been filed, announced that, unless plaintiff could dislodge them, it would dispose of the cause in accordance with the views expressed in a written opinion which were favorable to defendant, for the briefs were equivaent to argument, and a party is of right entitled to have his cause argued.

Appeal from Circuit Court, Jackson County; J. E. Goodrich, Judge.

Action by William M. Bunting against John C. Stone. From a judgment upon voluntary dismissal, defendant appeals. Affirmed.

H. H. McCluer and Omar E. Robinson, both of Kansas City, for appellant. E. Wright Taylor, of Kansas City, for respondent.

ELLISON, P. J.

Plaintiff's action was in equity to restrain defendant from further engaging in mercantile business in Kansas City prior to the 21st day of June, 1919, in accordance with his contract to that effect. The case came up for trial and was heard by the court. Whether it was fully heard and finally submitted is the point of controversy in this appeal. Plaintiff claims that, before it was finally submitted, he offered to dismiss the case. Defendant objected, but the court overruled his objection and dismissed the case as requested by plaintiff, and defendant appealed from the judgment of dismissal.

The case depends altogether upon a proper interpretation of the trial court's action, one part of the record. The case was heard, and the court gave counsel for the parties leave to argue the case by written briefs in support of their respective theories. There was much informality in subsequent proceedings. It seemed difficult to get the counsel before the court at the same time. Defendant's counsel made suggestions at times when counsel for plaintiff was not present. Finally the court succeeded in getting both of them in, when he stated to them he "was engaged in finishing a written opinion in the case which he had not concluded, but he would read it as far as completed, and that unless the plaintiff could dislodge the views he entertained, as expressed in the opinion, he was going to dispose of the case in accordance with that opinion." The record shows that the court "then proceeded to read the opinion as far as he had completed the same in a rough pencil draft." It may be conceded that the court read from this until it became apparent that its views were against plaintiff's case. "And thereupon plaintiff, in open court, asks to dismiss the case; and the defendant objects thereto on account of the case having been submitted to the court." The court stated that "the legal points had not been argued at all at the time of the trial, it being understood that briefs were to be furnished; and this is the first time Mr. Taylor has been present since he furnished his brief, and I wanted, before deciding the matter, to give him my ideas about the case, so that I could hear from him further as to matters that had arisen and which I had discovered since the filing of his brief."

It is apparent from the foregoing that there was not a final submission of the...