Greene County Bank v. Gray

• Decision Date: 15 November 1898
• Citation: 48 S.W. 447,146 Mo. 568
• Parties: GREENE COUNTY BANK v. GRAY.
• Court: Missouri Supreme Court

48 S.W. 447

146 Mo. 568

GREENE COUNTY BANK v. GRAY.

Supreme Court of Missouri, Division No. 1.

November 15, 1898.

APPEAL — WHEN LIES — VOLUNTARY NONSUIT.

Under Rev. St. 1889, § 2084, authorizing a plaintiff to take a nonsuit at any time before final submission of the cause, a nonsuit taken by plaintiff on a mere expression of opinion by the court that, if the cause be submitted, the finding will be against plaintiff, and before any adverse rulings are made, is voluntary, and cannot be reviewed on plaintiff's appeal.

Error from circuit court, Greene county; James T. Neville, Judge.

Action by the Greene County Bank against Charles M. Gray. There was a judgment for defendant, and plaintiff brings error. Affirmed.

Heffernan & Buckley, for plaintiff in error. Lincoln & Lydy, for defendant in error.

BRACE, P. J.

The petition in this case is In two counts. The first is in ejectment, in common form, to recover the possession of certain real estate therein described, situate in the city of Springfield, in Greene county, Mo. The second count is in the nature of a bill in equity to cancel and set aside three deeds executed by Parce & Burlingame, conveying said real estate to the defendant, Charles M. Gray, bearing date the 11th day of July, 1893, and on the same day duly acknowledged and filed for record in the office of the recorder of deeds of said county, but which deeds, it is alleged, were so executed, acknowledged, and filed for record with the intent to hinder, delay, and defraud the creditors of the said Parce & Burlingame, and were never delivered to or accepted by the defendant; that afterwards, on the 12th day of July, 1893, the plaintiff, to whom the said Parce & Burlingame were indebted in the sum of $12,550, caused a writ of attachment to be levied on said real estate in an action against them to recover such indebtedness, in pursuance of the judgment in which action, sustaining the attachment, the said real estate was sold, and plaintiff became the purchaser, and received a deed therefor from the sheriff. Issue was joined on both counts of the petition, and on 3d of April, 1894, the cause, coming on for trial in the circuit court, was disposed of in the following manner: "Now at this day come parties plaintiff and defendant, by their respective attorneys, and, this cause coming on to be heard, the said parties announce, `Ready for trial.' Thereupon, issue being joined, and a jury waived by consent, this cause is submitted to the court for hearing, whereupon the trial begins; and, after hearing all the evidence, the court having expressed the opinion that the law was for the defendant, and plaintiff could not recover on either count of its petition, plaintiff takes an involuntary nonsuit, with leave of the court to move to set aside the same. Whereupon it is considered, adjudged, and ordered that plaintiff take nothing by its suit herein, but that the same be, and is hereby, dismissed, and that the defendant, Chas. M. Gray, have and recover of and from the plaintiff, Greene County Bank, all costs in this suit laid out and expended, for which execution may issue." Afterwards, on the 6th of April, 1894, plaintiff filed its motion for new trial, and to set aside nonsuit, which coming on to be heard on the 7th of April, 1894, said motion was overruled, and plaintiff excepted. Thereupon plaintiff filed affidavit for appeal to the supreme court. The appeal was granted, and plaintiff given 90 days within which to file its bill of exceptions, and the bill was filed on the 18th of May, 1894. No steps seem to have been taken to bring the record here upon this appeal, but afterwards the same was brought here upon writ of error sued out on the 15th of January, 1896, returnable to the April term, 1896, of this court.

By statute the plaintiff is permitted "to dismiss his suit, or take a non suit at...