Lanyon v. Chesney

• Decision Date: 10 December 1907
• Citation: 209 Mo. 1,106 S.W. 522
• Parties: LANYON et al. v. CHESNEY et al.
• Court: Missouri Supreme Court

106 S.W. 522

209 Mo. 1

LANYON et al. v. CHESNEY et al.

Supreme Court of Missouri, Division No. 2.

December 10, 1907.

1. DISMISSAL AND NONSUIT—RIGHTS OF DEFENDANT—SET-OFF AND COUNTERCLAIM.

Under Rev. St. 1899, § 632 [Ann. St. 1906, p. 654], giving a plaintiff right to dismiss or take a nonsuit any time before final submission, section 797 [Ann. St. 1906, p. 761], giving him the right to dismiss in vacation on payment of costs, and section 4499 [Ann. St. 1906, p. 2463], providing that such dismissal shall not operate to dismiss or discontinue set-off or counterclaim which shall have been filed in the action, a vacation dismissal by plaintiff, on payment of costs, while not affecting defendant's right to prosecute any set-off or counterclaim pleaded before the dismissal, leaves defendant no right to file an amended answer, or to have the case reinstated, where the answer merely attempts to vary or put a different construction on the contract which the suit was instituted to specifically enforce; such matter constituting a defense, and not a set-off or counterclaim.

2. APPEAL—REVERSAL—DISMISSAL OF ACTION —RIGHTS OF DEFENDANT.

Defendant, on reversal of a judgment under which plaintiff has obtained possession of property, is entitled to be restored to the possession thereof, notwithstanding plaintiff's dismissal of the action.

3. SAME—REVIEW—WEIGHT OF EVIDENCE.

There being nothing in the finding as to the rental value by the court, which saw and heard the witnesses, that does not indicate the utmost fairness and impartiality, such finding will not be disturbed.

Appeal from Circuit Court, Greene County; James T. Neville, Judge.

Action by Robert Lanyon and others against Frank O. Chesney and others. From the judgment, defendants appeal. Affirmed.

George Hubbert and E. E. Chesney, for appellants. J. D. Harris, E. O. Brown, and R. A. Mooneyham, for respondents.

BURGESS, J.

This case was before this court upon a former appeal by defendants and will be found reported in 186 Mo. 540, 85 S. W. 568, where a full and fair statement of all the facts of the case upon, to, and including the first trial, is given by Judge Fox, who wrote the opinion in the case. The judgment was then reversed, and the cause remanded. The cause was then pending in the circuit court of Jasper county, but after the filing of the mandate of the Supreme Court in the circuit court of that county the venue of the cause, on the application of defendants, was changed to Greene county. After the transcript of the record of the cause was filed in the office of the clerk of the circuit court of Greene county, plaintiffs, in vacation, May 5, 1905, upon the payment of all costs which had accrued in the cause, with the consent of the clerk of said court, dismissed the cause, and the clerk made a minute on the record to that effect. On May 17, 1905, during the May term, 1905, of the Greene county circuit court, defendants filed their motion to set aside said order of dismissal to reinstate the cause, and for restitution of the premises and damages for the taking and detention thereof, and asking that plaintiffs be enjoined from enforcing their claims against said premises until such restitution should be made. Upon the presentation of this motion the court appointed a commissioner to take depositions therein, which depositions were returned to and filed in the Greene circuit court on January 8, 1906. While said motion was pending, on June 23, 1906, defendants tendered and offered to file their "joint and amended answer and cross-bill." Plaintiffs resisted the said motion upon the ground that the cause had been disposed of by vacation dismissal, and that the court had no jurisdiction in the premises as to any feature of the motion. After amendment of the motion by the addition of a supplemental claim for direct injuries to the mill by Mink pending the motion, a final hearing was had on March 14, 1907; the court awarding restitution of the possession of the property in question by plaintiff Mink to defendants, with damages in the sum of $500 and costs incident to the motion, on account of the fact that Mink had taken and held possession of the premises in question by virtue of the erroneous and vacated decree. The motion, as to all other matters mentioned therein, was overruled by the court, and the judgment for possession was combined with an order that the writ of possession must contain an execution clause for $500 damages, so that defendants could not sue out execution of the writ of possession without thereby waiving appeal from the adverse parts of the judgment, to all which defendants excepted. Mink continues in possession of the Quaker Mills premises and property. From the judgment of the court, defendants appeal.

Counsel for the defendants present a number of propositions of law respecting errors alleged to have been committed by the trial court prejudicial to defendants. The first is that the vacation dismissal of the suit by plaintiffs on May 5, 1905, did not finally dispose of the case or the subject of the action, nor cut off defendants' rights or remedies with relation thereto. Under the provisions of section 632, Rev. St. 1899 [Ann. St. 1906, p. 654], a plaintiff has the right to dismiss his suit or take a nonsuit at any time before final submission to the jury, or to the court sitting as a jury, or to the court; and by section 797 [Ann. St. 1906, p. 761] the right is conferred upon the plaintiff in any suit in any court of record to dismiss such suit in the vacation of the court, upon the payment of all costs that may have accrued. By section 4499 [Ann. St. 1906, p. 2463] it is provided that such dismissal shall not operate to dismiss set-off, and "the dismissal or any other discontinuance of the plaintiff's action, in which such set-off or counterclaim shall have been filed, shall not operate to dismiss or discontinue such set-off or counterclaim." Prior to the revision of 1889, when section 8172, now section 4499, Rev. St. 1899 [Ann. St. 1906, p. 2463], 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 et al. 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 setoffs and counterclaims in their answers to actions against them, said ...