Lawrence v. Shreve
| Decision Date | 31 March 1858 |
| Parties | LAWRENCE, Plaintiff in Error, v. SHREVE, Defendant in Error. |
| Court | Missouri Supreme Court |
1. Where a cause is tried by a court sitting as a jury and the parties request a declaration of the law of the case, the plaintiff should have an opportunity, after the court declares the law, to take a nonsuit.
Error to St. Louis Law Commissioner's Court.
Gray, for plaintiff in error.
I. It is the right of the plaintiff to have the law declared. If the law as laid down by the court be such as, on the case made, would not entitle plaintiff to a judgment, it is his undoubted right to take a nonsuit. The plaintiff was deprived of this right by the action of the court. The plaintiff was waiting for the court to decide on the instructions in order to determine whether or not to submit the case on the facts or to take a nonsuit. The court should have granted the motion for a new trial.
Shreve, for defendant in error.
I. The court did not err in refusing a new trial.
We think the plaintiff should have been allowed to take a nonsuit in this case. The statute says: “The plaintiff shall be allowed to dismiss his suit, or take a nonsuit, at any time before the same is finally submitted to the jury, or the court sitting as a jury, or to the court.” When a case is tried by a jury it has been the uniform construction of this law, in practice, to allow a party to get the opinion of the court upon the law of his case in the form of instructions and then withdraw his suit if that opinion is unfavorable. The same opportunity ought to be afforded in cases where the court is permitted to decide the law and try the facts as a jury, if the parties request a declaration of the law from the court.
In this case the court took the question of law under advisement, and when the decision was made the whole case was decided together, and no opportunity given for a nonsuit. The instruction given for the defendant was merely an instruction upon the evidence that the plaintiff was not entitled to recover; but the character of the instruction can not vary the rights of the parties, and would rather seem to make it more imperative on the court to give the plaintiff an opportunity of determining whether he would proceed further with the case. The plaintiff cannot insist upon immediate determination of the law asked for by the instructions offered; but if the court takes them under advisement, proceeding on with other...
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Strottman v. St. Louis, Iron Mountain & Southern Railway Company
... ... before the latter could properly enter a final judgment ... against him. [R. S. 1889, sec. 2084; Lawrence v ... Shreve, 26 Mo. 492.] And the reviewing power of this ... court extends no further in actions at law, than to pronounce ... such judgment ... ...
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Strottman v. St. Louis, I. M. & S. Ry. Co.
...such course in the circuit court before the latter could properly enter a final judgment against him (Rev. St. 1889, § 2084; Lawrence v. Shreve [1858] 26 Mo. 492), and the reviewing power of this court extends no further in actions at law than to pronounce such judgment as the trial court `......
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Connecticut Fire Ins. Co. v. Manning
...take a nonsuit at any time before the jury has actually retired. Wood v. Nortman, 85 Mo. 298, 304; Templeton v. Wolf, 19 Mo. 101; Lawrence v. Shreve, 26 Mo. 492; Mayer v. Old, 51 Mo.App. 214, 218; Bank Gray, 146 Mo. 568, 570, 48 S.W. 447; Wilson v. Stark, 42 Mo.App. 376. Indeed, the rule of......
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Carroll v. Interstate Rapid Transit Co.
...such course in the circuit court before the latter could properly enter a final judgment against him (R. S. 1889, sec. 2084; Lawrence v. Shreve (1858), 26 Mo. 492); and reviewing power of this court extends no further in actions at law, than to pronounce such judgment as the trial court "ou......