Keith v. Yazoo & M. v. R. Co

• Decision Date: 02 January 1933
• Docket Number: 30323
• Parties: KEITH v. YAZOO & M. V. R. CO
• Court: Mississippi Supreme Court

145 So. 227

164 Miss. 566

KEITH v. YAZOO & M. V. R. CO

No. 30323

Supreme Court of Mississippi

January 2, 1933

Division B

(Division B.)

1. DISMISSAL AND NONSUIT.

Plaintiff seeking nonsuit need not show meritorious cause of action which he will adequately state in new declaration.

2. DISMISSAL AND NONSUIT.

Plaintiff could take nonsuit after demurrer to declaration was sustained and before time allowed for amendment expired (Code 1930, section 594).

3 JUDGMENT.

Judgment of nonsuit need not adjudge costs, in view of statute providing that in such cases defendant shall recover costs (Code 1930, section 668).

4 JUDGMENT.

Order reciting in court's minutes style and number of case followed with term "nonsuit" held valid judgment of nonsuit.

5. DISMISSAL AND NONSUIT.

Where plaintiff took nonsuit, case could be brought back into court only by subsequent order, entered during term, setting aside nonsuit.

6 JUDGMENT.

Order granting defendant's motion for final judgment for plaintiff's failure to amend declaration within time, entered before case wherein plaintiff had been granted nonsuit was reinstated, held invalid as judgment upon merits when case was not before court.

HON. S. F. DAVIS, Judge.

APPEAL from circuit court of Washington county, HON. S. F. DAVIS, Judge

Action by E. A. Keith against the Yazoo & M. V. Railroad Company. From a judgment for defendant, plaintiff appeals. Reversed.

Reversed.

Wynn & Hafter, of Greenville, for appellant.

There appears an order of the court, permitting the appellant to take a nonsuit. The appellant was within his rights in taking the nonsuit, and the court was correct in permitting the appellant to do so. A final judgment taken at a later date of the term of court than the order of nonsuit was improper and a nullity, and the county court should be reversed for permitting the appellee to have proceeded after the nonsuit. When a nonsuit is taken, there is nothing before the court. This nonsuit was taken by the appellant against both defendants. The final judgment obtained by the appellee after the nonsuit was taken will be used by the appellee as the basis for a plea of res adjudicata if and when a subsequent suit is filed by the appellant against the appellee.

Plaintiff may take nonsuit before peremptory instruction is given.

Schaffer v. Deemer Manufacturing Company, 108 Miss. 257.

The plaintiff had a right to take a nonsuit at any time before the jury had retired to consider its verdict.

Section 594, Code of 1930.

It is proper for the trial court to grant the plaintiff a nonsuit, even after it has intimated that it was going to give a peremptory instruction.

Edwards v. Yazoo and Mississippi Valley Railroad, 73 So. 789.

Percy, Strauss & Kellner, of Greenville, for appellee.

First, the order of nonsuit is a nullity. Second, the appellant asked that it be set aside and in the same motion asked for additional time to file the amended declaration. The case then stood as follows: The railroad company had an order sustaining its demurrer to the declaration. Plaintiff was granted leave to file an amended declaration within thirty days. This was all he could do. If he did not file an amended declaration the railroad company was entitled to a final judgment.

The appellant elected not to file the amended declaration but undertook to take a nonsuit. The case was exactly in the same position as if the court had granted a peremptory instruction but before the verdict was entered undertook to take a nonsuit, and such course is not permitted.

Schaffer v. Deemer Manufacturing Co., 108 Miss. 257; Bee Building Co. v. Dalton, 68 Neb. 38.

Argued orally by Jerome S. Hafter, for appellant, and by Ernest Kellner, Jr., for appellee.

OPINION

Griffith, J.

Appellant filed his declaration in the county court against appellee and another, charging or attempting to charge concurrent negligence on the part of the defendants therein by reason of which appellant averred that he had been damaged, and for which damage he demanded judgment. A demurrer was interposed by the railroad company on the ground that the declaration on its face showed no cause of action against the railroad. This demurrer was sustained on March 14, 1932, and the plaintiff having applied for leave to amend, it was made a part of the order sustaining the demurrer "that said plaintiff have leave within thirty days from the date thereof to amend his declaration."

Within the thirty days and on the convening of the county court on the eleventh day of April, 1932, plaintiff took a nonsuit; the order therefor being in the following words: "E. A. Keith v. Grant Alexander and Yazoo and Miss. Valley Railroad Company, No. 884, Nonsuit." Four days thereafter, and during the said April, 1932, term of the court, plaintiff filed a motion to set aside the order of nonsuit and to permit an amended declaration to be filed, and there was exhibited with the motion the proposed amended declaration. On the same day, to-wit, on April 15, 1932, the railroad company filed its motion for final judgment because of the failure of plaintiff to amend his declaration within the time allowed in the order of March 11, 1932.

These motions were heard together, and an order, styled an order of final judgment, was entered on the 16th April, 1932 overruling the motion of plaintiff to set aside the...