Greene County Bank v. Gray

• Citation: 48 S.W. 447,146 Mo. 568
• Parties: Greene County Bank, Plaintiff in Error, v. Gray
• Decision Date: 08 December 1898
• Court: Missouri Supreme Court

48 S.W. 447

146 Mo. 568

Greene County Bank, Plaintiff in Error, v. Gray

Supreme Court of Missouri, First Division

December 8, 1898

Error to Greene Circuit Court. -- Hon. James T. Neville, Judge.

Affirmed.

C. V Buckley and F. S. Heffernan for plaintiff in error.

Lincoln & Lydy for defendant in error.

OPINION

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, Missouri.

The second count is in the nature of a bill in equity to cancel and set aside three deeds executed by Parce and Burlingame conveying said real estate to the defendant Charles M. Gray, bearing date the eleventh 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 and Burlingame, and were never delivered to or accepted by the defendant. That afterwards on the twelfth day of July, 1893, the plaintiff, to whom the said Parce and 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 the third 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 sixth of April, 1894, plaintiff filed its motion for a new trial, and to set aside nonsuit, which coming on to be heard on the seventh of April, 1894, was overruled and plaintiff excepted. Thereupon plaintiff filed affidavit for appeal to the Supreme Court. The appeal was granted and plaintiff given ninety days within which to file its bill of exceptions, and the bill was filed on the eigthteenth 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 fifteenth 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 nonsuit at any time before the same is finally submitted to the jury, or to the court sitting as a jury, or to the court, and not afterward." R. S. 1889, sec. 2084. This court entertains jurisdiction to review the action of the circuit court in such cases, only when the circuit court upon the trial of the cause decides questions which cover the plaintiff's case, precludes a recovery and obliges him to submit to a nonsuit. It can not interfere in cases where parties voluntarily or needlessly takes a nonsuit. Schulter v. Bockwinkle, 19 Mo. 647; Dumey v. Schoeffler, 20 Mo. 323; Sone v. Palmer, 28 Mo. 539; Gentry Co. v. Black, 32 Mo. 542; Layton v. Riney, 33 Mo. 87; Poe v....