Gulf & S.I.R. Co. v. Williams

• Decision Date: 14 June 1915
• Docket Number: 17868
• Parties: GULF & SHIP ISLAND RAILROAD CO. v. WILLIAMS
• Court: Mississippi Supreme Court

68 So. 776

109 Miss. 549

GULF & SHIP ISLAND RAILROAD CO. v. WILLIAMS

No. 17868

Supreme Court of Mississippi

June 14, 1915

APPEAL from the circuit court of Lamar county. HON. A. E WEATHERSBY, Judge.

Suit by Jonnie Williams against the Gulf & Ship Island Railroad Company. From a judgment for plaintiff, defendant appeals. Motion to dismiss appeal sustained.

The facts are fully stated in the opinion of the court.

Motion sustained.

J. W Cassidy, Salter & Hathorn and Currie & Currie, for the motion.

STEVENS J. SMITH, C. J. dissenting,

OPINION

STEVENS, J.

Appellee moves the court to dismiss the appeal in this case because "the record in said case shows affirmatively that a nonsuit was granted the plaintiff and there is no final judgment in the case from which an appeal could be prosecuted."

Appellee sued appellant company in the circuit court of Lamar county, in an action of tort, and after testimony had been introduced for both parties appellant asked for a peremptory instruction. What was then done can best be stated in the language of the trial judge, as contained in the record:

"At the conclusion of the testimony for both sides in this case the defendant asked for a peremptory instruction, and thereupon the judge, together with the attorneys for both sides, repaired to one of the jury rooms in the courthouse leaving the jurors in their seats, and the court announced that he was going to give a peremptory instruction for the defendant. And thereupon Hon. J. W. Cassidy, of counsel for plaintiff, stated to the court that he would like to be heard on the proposition. To which the court assented, and then after the argument of counsel for the plaintiff the court announced his determination to grant the defendant a peremptory instruction, when Mr. N. T. Currie asked the court to suspend a moment, and retired to the courtroom with his associate, Hon. J. W. Cassidy, announcing that the plaintiff desired to take a nonsuit. To this the defendant objected because of the fact that the court had already announced that he would grant the defendant a peremptory instruction. . . . But no instruction to the jury had been granted or marked 'Given' when the request was made to take a nonsuit. That when counsel for plaintiff asked to take a judgment of nonsuit the court had in his lap wrapped around a hymn book a peremptory instruction prepared by the counsel for the defendant, but which he had declined to sign, and had not signed at that time. The court therefore declines to give the peremptory instruction, and grant the plaintiff a nonsuit."

It is further reflected by the record that counsel for appellant objected to the granting of the nonsuit because this was the second time this action had been filed against appellant; appellee having taken a nonsuit once before in Smith county. The record does not disclose why the nonsuit was asked for or suffered in Smith county. Thereupon judgment was entered, the material recitals of which are as follows:

"The evidence being submitted both by and for plaintiff and defendant, thereupon defendant moves the court to peremptorily instruct the jury to find for the defendant, which motion was by the court sustained, but on application of plaintiff the court revoked the said motion, and over the objections of defendant permitted plaintiff to take a nonsuit, to which action of the court defendant then and there excepted and still excepts, and thereupon an appeal to the supreme court was granted with a supersedeas, . . . It is further ordered that defendant do have and recover of and from the plaintiff, Mrs. Tommie Williams, J. W. Cassidy, D. T. Currie, and N. T. Currie the sureties on her bond, all costs incurred in said cause, not exceeding the penalty of the bond, for all of which execution may issue."

The record discloses an additional judgment entered on the minutes of the same day, as follows:

"The above cause this day coming on for hearing, and on motion of plaintiff a nonsuit was granted, and plaintiff allowed to withdraw her suit without prejudice to her right to bring another suit; all costs in this behalf expended to be taxed against the said plaintiff and the sureties on her bond, for all of which let execution issue."

An appeal with supersedeas was duly prayed for and perfected by appellant and the question squarely presented for our decision is whether the judgment of the lower court is a final judgment, within the meaning of section 33 of the Code of 1906, and therefore one from which an appeal can be prosecuted. If the judgment is not one embraced by the statute, then it follows that this court would have no jurisdiction of the case on appeal. A careful inspection of the record convinces us that the order of the trial court was a plain judgment of "nonsuit. " For the purposes of this opinion, what transpired in the course of the trial, leading up to and inducing plaintiff in the court below to move for and have granted a nonsuit, is of little consequence.

Conceding, for the present, that the circuit judge did announce his intention of granting a peremptory instruction for and on behalf of appellant, and, further, that under the state of the record as it then existed, such ruling by the trial judge would have been proper, it yet remains that the written instruction, the sole method by which a judge can instruct the jury, was not given, and that the circuit judge, upon motion of appellee for a nonsuit, refused to carry into execution his announced intention to dispose of the case by such peremptory charge, and proceeded to grant the nonsuit. In this instance it is certainly true that "actions speak louder than words," especially "talk" between the trial judge and the lawyers engaged in the trial.

The granting of a nonsuit was a matter addressed to the discretion of the trial judge. It must be remembered that the court granting the dismissal of this case had original jurisdiction of the parties and the subject-matter, and that all matters of procedure must be decided by it.

No error can be complained of until after the case had proceeded to the "final judgment" contemplated by the statute, and an appeal therefrom to this court, and the final judgment embraced within the true intent and meaning of section 33 of the Code does not, in our judgment, embrace the voluntary dismissal or nonsuit by the plaintiff.

Our court in its early history held that a writ of error does not lie from a judgment on a voluntary nonsuit to examine the ruling of the court which caused such nonsuit to be taken. Ewing v. Glidwell, 3 Howard 322, 34 Am. Dec. 96; Copeland v. Mears, 2 S. & M. 519; Thornton v. Demoss, 5 S. & M. 609; Greenlee v. McCoy, 30 Miss. 588.

It has always been the uniform holding:

"That a writ of error would not lie, when exceptions are taken to a judgment granting a new trial, until after the new trial has been had, and the final judgment rendered." Bank v. Taylor, 2 S. & M. 27; Terry v. Robins, 5 S. & M. 291; Moody v. State, 13 S. & M. 642; Brown v. Carraway, 47 Miss. 668; Haise v. Lorch, 47 Miss. 685; Y. & M. V. R. R. Co. v. Reid, 90 Miss. 616, 43 So. 952.

The court in the last case declined to entertain jurisdiction, because section 4910, Code of 1906, was held to be unconstitutional, and therefore that the rights of appellant in that case were measured solely by section 33 of the Code of 1906.

In Barrier v. Kelly, 81 Miss. 266, 32 So. 999, Judge CALHOUN, in dismissing the appeal, says:

"In order that a decree may be appealed from, it must be final as to its subject."

We are conscious of the fact that the appeals attempted to be prosecuted from the judgments based on a voluntary nonsuit in the earlier cases in Mississippi have all been prosecuted, so far as we have noted, by the plaintiff in the court below who was induced to take a nonsuit by some adverse rulings of the court, and the doctrine of estoppel has been frequently applied against the appellant in such cases. At the same time a plain judgment of nonsuit cannot be appealed from by the defendant in the action, because in the eye of the law such a judgment is not adverse to the defendant; under it...