Dumey v. Schoeffler

• Decision Date: 31 January 1855
• Parties: DUMEY, Appellant, v. SCHOEFFLER et al., Respondents.
• Court: Missouri Supreme Court

20 Mo. 323

DUMEY, Appellant,

v.SCHOEFFLER et al., Respondents.

Supreme Court of Missouri.

January Term, 1855.

1. The supreme court will not disturb a non-suit voluntarily taken by a plaintiff, upon the overruling of a motion to strike out a part of the defendant's answer. (Shulter v. Bockwinkle, 19 Mo. 647, affirmed.)

Appeal from Chariton Circuit Court.

This was a petition by Dumey against Schœffler and wife to recover possession of certain real and personal estate. The petition stated that, by the last will of Frederick Heneger, his widow became entitled to the property in question during her life or widowhood, and that she had since intermarried with the defendant, Schœffler, whereby the plaintiff and Sarah Dumey, an infant, (who was made a defendant, her guardian refusing to join as plaintiff,) by the terms of the will became immediately entitled to the possession of the property.

Schœffler and wife answered, setting up, among other things, that so much of the will as required her to surrender the property upon her marriage was void.

A motion to strike out this portion of the answer was filed and overruled, whereupon the plaintiff voluntarily submitted to a non-suit, and appealed to this court.

Clark, for appellant.

J. Davis, for respondent.

RYLAND, Judge, delivered the opinion of the court.

This case presents the point of a petitioner taking voluntarily a nonsuit, because the court below refused to strike out a part of the defendant's answer. There was no compulsion by the court for this plaintiff to take this non-suit.

The case should have gone on, and the points involved have been settled by the court upon proper instructions, so that there might have been a judgment for one or the other parties upon the matters in the answer and petition, which remained after the petitioner's motion to strike out a part of the answer had been overruled.

In cases where the giving or refusing to give instructions may affect the party's right to maintain his action, there the ruling of the court may force a party to take a non-suit; in such cases, this court will look into the judgment and decision of the lower court thus forcing the non-suit on the petitioner and will affirm or reverse, as the law may be.

1. In the case of Schulter's Adm'r v. Bockwinkle's Adm'r, (19 Mo. 647,) this court held, “that we would entertain jurisdiction in cases, where the courts below have, upon the trial of causes, decided questions which covered the plaintiff's case and obliged him to submit to a non-suit. But where parties voluntarily suffer non-suits, we do not interfere. If it was allowed to plaintiffs to take non-suits on every motion they might make, and which the court might overrule, and then bring the case here to test the...