Hamlin v. Walker

• Decision Date: 31 May 1910
• Parties: HAMLIN et al. v. WALKER et al.
• Court: Missouri Supreme Court

128 S.W. 945

228 Mo. 611

HAMLIN et al. v. WALKER et al.

Supreme Court of Missouri, Division No. 1.

May 31, 1910.

1. DISMISSAL AND NONSUIT (§ 12)—RIGHT TO DISMISS—COMMON LAW.

Under the common law as adopted in Missouri, plaintiff may dismiss at any time before verdict.

2. DISMISSAL AND NONSUIT (§ 2)—RIGHT TO DISMISS—SET-OFF AND COUNTERCLAIM— STATUTES.

Rev. St. 1899, § 639 (Ann. St. 1906, p. 658), provides that plaintiff may dismiss or take a nonsuit at any time before final submission, and section 4499 (page 2463) declares that whenever a set-off or counterclaim shall be filed it shall be treated as an independent action, except in the cases enumerated in section 4488 (page 2459), and that any discontinuance of plaintiff's action in which such set-off or counterclaim shall be filed shall not discontinue the set-off or counterclaim, but defendant may prosecute the action in the same manner as if he had originally begun an action against plaintiff. Held, that such section did not modify section 632, and hence plaintiff in all ordinary actions at law or in equity may dismiss his suit or take a nonsuit before final submission, irrespective of the matters pleaded in the answer which would entitle defendant to affirmative relief.

3. DISMISSAL AND NONSUIT (§ 19)—PARTITION —STATUTES.

Rev. St. 1899, § 4376 (Ann. St. 1906, p. 2413), declares that every person having an interest in premises sought to be partitioned, whether in possession or otherwise, shall be made a party. Section 4378 (page 2414) provides that any such person having an interest, though not made a party, may be made a party on application accompanied by an affidavit, and section 4389 (page 2417) provides that when the parties claim the same portion adversely to each other the court may either decide on such adverse claims, or direct the shares in controversy to be set off and allotted, subject to the claims of the parties in controversy against each other. Held, that where, in partition, defendants other than W. filed an answer attacking his interest under a deed from the common source of title and claimed affirmative relief as to such deed, such issue so raised did not, under such sections, preclude plaintiffs from dismissing the suit before hearing, as they were otherwise entitled to do.

Appeal from Circuit Court, Platte County; Alonzo D. Burnes, Judge.

Action by Peter B. Hamlin and others against Malinda Walker and others. From a judgment of dismissal, defendants other than James Wallis appeal. Affirmed.

B. R. Martin and James H. Hull, for appellants. Anderson & Carmack and John W. Coots, for respondents

GRAVES, J.

Action for the partition of 80 acres of land in Platte county. We will give the facts as set out in the pleadings. This land was owned by Robert M. Hamlin in his lifetime. Hamlin died without issue, and left as his widow Nancy A. Hamlin. Upon the death of Hamlin, the wife and widow elected to take one-half of the property absolutely. The plaintiffs were nephews and nieces of the said Hamlin. Afterward Nancy A. Hamlin died, and the defendants appealing to this court are her collateral heirs at law. She deeded her interest in the land to the defendant James Wallis, who does not appeal. The foregoing facts are pleaded in the petition, and, in addition thereto, it is pleaded that the defendants appealing to this court claim some title to the property adverse to defendant Wallis, but not to the plaintiffs, and, for the reason of such adverse claim to the interest conveyed to Wallis, they were made defendants. The appealing defendants filed a separate answer, in which they plead the same facts as to the death of Mr. Hamlin and the descent of his property as pleaded by plaintiffs, and then aver their relationship to the deceased, Nancy A. Hamlin. They then aver that the said Nancy A. Hamlin died intestate and seised of an undivided half interest in the land involved in this suit. They then further aver that the alleged deed to Wallis from Mrs. Hamlin was null and void because that the grantor therein was (1) mentally incapable to make a deed, and (2) that she was unduly influenced to make the same by Wallis, who at the time stood in a fiduciary relation to the said grantor, Mrs. Hamlin. They asked that the said deed be canceled and for naught held, and that they be given and granted their respective interests in the property. This answer was filed on March 18, 1907. On March 19, 1907, the following stipulation was filed by the plaintiffs and the defendant Wallis: "It is hereby stipulated and agreed by and between the plaintiffs and the defendant James Wallis that this cause shall be dismissed at the cost of the defendant James Wallis." Over the objection of the defendants, who have appealed this cause, the trial court dismissed said cause as per the terms of the stipulation and entered judgment against Wallis for costs, as per the stipulation. After unsuccessful motions for new trial and in arrest of judgment, an appeal was taken from the judgment aforesaid. The sole question, therefore, is whether or not under the pleadings the court could dismiss the cause upon the stipulation, and thus preclude the appealing defendants from trying the issues raised by their answer or cross-bill, if it should be denominated a "cross-bill."

1. A glance at the statement discloses that there is but a single question for determination in this case. Its determination is dependent upon a close examination of the common law and our statutes. At common law there would be no doubt as to the right of the plaintiff to dismiss his cause. The rule of the common law is thus tersely stated in 6 Encyc. of Plead. & Prac. p. 848: "At common law, the filing of a plea or answer, in any form of action, merely responsive to the plaintiff's complaint, does not affect his right to a voluntary termination of the action. Nor at common law did the filing of a counterclaim or plea of set-off have any efficacy in that respect." Not only so, but under the common law, as we adopted it in Missouri, the plaintiff had the right to dismiss at any time before verdict. In 14 Cyc., at page 401, it is said: "In England plaintiff originally had a right to abandon an action at law and become nonsuit at any time before verdict. But the rule has been abolished there by a rule of the Supreme Court adopted under the judicature act, and has been changed by statute in a large number of the United States. So without any special statutory regulations on the subject the courts of many other states have declined to follow the rule. In other states where there has been no statutory change of the rule, plaintiff may still dismiss his action at any time before verdict; at least he can do so unless a set-off or counterclaim is pleaded by defendant, or unless defendant has acquired a right to some affirmative relief." The change was made in England in the year 1845. Howard v. Bugbee, 25 Ala., loc. cit. 550.

Our statutes, however, have modified the common-law rule. Thus by section 639, Rev. St. 1899 (Ann. St. 1906, p. 658), the plaintiff can dismiss or take a nonsuit at any time before final submission to the jury or to the court sitting as a jury. Lanyon v. Chesney, 209 Mo., loc. cit. 6, 7, 106 S. W. 522. Prior to the enactment of section 4499, Rev. St. 1899 (Ann. St. 1906, p. 2463), which first appeared in the revision of 1889, a defendant filing a counterclaim or set-off could not ask judgment or such claim unless the plaintiff pressed his suit. In Lanyon v. Chesney, supra, it is said: "Prior to the revision of 1889, when section 8172, now section 4499, Rev. St. 1899, was added, it was several times, in effect, ruled by the Supreme Court that, when the defendant answered and pleaded a set-off or counterclaim, he could not, if plaintiff failed to appear at the trial, or take a nonsuit, take a verdict and judgment against him for the amount of his set-off and counterclaim. Nordmanser v. Hitchcock, 40 Mo. 178; Fink v. Bruihl, 47 Mo. 173; Martin v. McLean, 49 Mo. 361. But in order to remedy this seeming injustice to defendants who had and pleaded set-offs and counterclaims in their answers to actions against them, said section 4499 was added, and since that time the dismissal or nonsuit of plaintiffs no longer carries with it the set-off or counterclaim of a defendant, but such is proceeded with as an independent suit instituted by the defendant. The consequence is that the cases above referred to are no longer the law in cases where defendant files a set-off or counterclaim. Pullis v. Pullis, 157 Mo. 565 ."

It would thus appear that in this state the plaintiff is not precluded from dismissing his cause and retiring from court at any time before submission, except in cases where a set-off or counterclaim has been filed, and then the right to retire absolutely from the cause is cut off in such cases by express statute. The common-law rule has therefore been at least modified in two particulars: (1) The dismissal must be before submission, whilst at common law it might be after submission but before verdict; and (2) in cases wherein a counterclaim or set-off has been filed, the dismissal of the plaintiff shall not preclude the defendant from going on with his counterclaim or set-off as against the plaintiff. This section 4499 reads: "Whenever a set-off or counterclaim shall be filed in an action, as provided in this chapter, it shall be deemed in law and treated as an independent action begun by the defendant against the plaintiff, except in the cases enumerated in section 4488 of this chapter; and, the dismissal or any other discontinuance of the plaintiff's action, in which such...