Lawyers' Co-Op. Pub. Co. v. Gordon

• Decision Date: 18 February 1903
• Citation: 73 S.W. 155,173 Mo. 139
• Parties: LAWYERS' CO-OP. PUB. CO. v. GORDON.
• Court: Missouri Supreme Court

73 S.W. 155

173 Mo. 139

LAWYERS' CO-OP. PUB. CO. v. GORDON.

Supreme Court of Missouri, Division No. 1.

February 18, 1903.

TRIAL — SUBMISSION OF CAUSE — NONSUIT.

1. Where, in a cause tried to the court, at the close of the evidence of plaintiff the defendant filed a demurrer to the evidence, and at the close of the evidence of the defendant the court took the cause under advisement, and the parties were required to furnish briefs, there was a final submission of both the law and facts to the court; and under Rev. St. 1899, § 639, providing that plaintiff may take a nonsuit before the cause is finally submitted, but not afterwards, the granting of a nonsuit at the next term, after decision for the defendant was announced, was error.

2. Under Rev. St. 1899, § 695, providing that, in cases tried before the court, it shall not be necessary to state its findings, except generally, unless a special finding is requested, where a plaintiff desires to retain the right to take a nonsuit until after the questions of law are decided he should request a special finding thereon before the issues of fact are submitted.

Appeal from Circuit Court, Boone County; Jno. A. Hockaday, Judge.

Action by the Lawyers' Co-operative Publishing Company against Webster Gordon. From an order setting aside a verdict in favor of defendant, and permitting plaintiff to take a nonsuit, defendant appeals. Affirmed by the Court of Appeals, and transferred to the Supreme Court. Reversed.

Curtis Haydon, N. T. Gentry, and E. W. Hinton, for appellant. W. H. Truitt, Jr., for respondent.

MARSHALL, J.

This is an action of assumpsit, on account, to recover a balance of $100 for goods sold and delivered to defendant at his request. The answer is a general denial, supplemented by a special plea that the plaintiff is a foreign corporation, and has never complied with the laws of this state respecting foreign corporations, and therefore is not entitled to sue. Upon the trial the plaintiff offered the deposition of its treasurer, who testified to the state of the account; and the plaintiff then called the defendant, by whom it showed a written contract for the sale of the goods, and whose testimony further tended to show that the plaintiff had not performed its part of the written contract, and had not delivered all the goods contracted for and embraced in the account sued upon, and that he had paid for all the goods delivered, except, perhaps, two of the books, as to which he was uncertain. The record then shows the following order: "Now on this day comes the plaintiff by its attorney, and the defendant comes in person and by his attorneys, and, this case being called for trial, both parties answer `Ready,' and, neither party requiring a jury, the issues herein joined are submitted to the court by oral consent in open court, entered on the minutes, and at the close of the evidence of plaintiff the defendant files demurrer to the evidence, and at the close of the evidence of defendant the court doth take this cause under advisement on the demurrer and evidence until next term, and the parties are required to furnish briefs in vacation. And thereafter, on the 13th day of February, 1900, during the regular February term, the court announced its finding and verdict for the defendant. And after the verdict was announced by the court, plaintiff asked leave to take a nonsuit, which the court refused to permit him to do." The plaintiff in due time filed a motion for a new trial, alleging, inter alia, error of the court in refusing to allow the plaintiff to take a nonsuit. Thereafter the court entered the following order: "Now at this day come the parties hereto, plaintiff and defendant, by their respective attorneys, and the motion heretofore filed by plaintiff to set aside the verdict in this cause, coming on to be heard, and being seen and heard by the court, is sustained, for the purpose of permitting plaintiff to take a nonsuit, whereupon plaintiff takes nonsuit. It is therefore ordered and adjudged by the court that the defendant have and recover of the plaintiff, the Lawyers' Co-operative Publishing Company, and W. H. Truitt, Jr., its security, all cost of this cause, and have thereof execution." The defendant saved proper exception to this ruling of the court, and filed a motion to set it aside, which being overruled, he appealed to the Kansas City Court of Appeals. That court affirmed the judgment below, but transferred the cause to this court, because one of the judges of that court deemed the decision to be in conflict with the decision of the St. Louis Court of Appeals in the case of McLean v. Stuve, 15 Mo. App. 317, and therefore, under section 6 of the amendment of 1884 to article 6 of the Constitution, this court has jurisdiction, and must rehear and determine the case as in case of jurisdiction obtained by ordinary appellate process.

The ruling of the trial court in sustaining the plaintiff's motion for a new trial "for the purpose of permitting plaintiff to take a nonsuit" is the vital point involved here. The Kansas City Court of Appeals affirmed this ruling on the ground that the trial court erred in refusing to allow the plaintiff to take a nonsuit, and corrected that error by the ruling in question. That appellate court cited two cases decided by it, in support of its decision, to wit, Wilson v. Stark, 42 Mo. App. 376, and Mayer v. Old, 51 Mo. App. 214. And counsel for plaintiff supplements these references with the case of Lawrence v. Shreve, 26 Mo. 492. It is said these cases lay down a different rule from that announced in McLean v. Stuve, 15 Mo. App. 317. But a careful analysis of these cases, and a differentiation of the facts in judgment, will show that there is no such difference between the decisions of the two courts of appeals in their prior decisions, and that no such conflict exists between such prior decisions of the two courts of appeals and the decision of this court in Lawrence v. Shreve, supra. Section 639, Rev. St. 1899, provides: "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 to the court sitting as a jury, or to the court, and not afterward." This statute has been in force since before the decision in Lawrence v. Shreve, 26 Mo. 492, which was in 1858, except that the words, "and not afterward" were added in the revision of 1865. Necessarily all of the cases have gone off upon an application of this statute to the facts in each case, and the construction of the meaning of the statute as to when a case is finally submitted. In McLean v. Stuve, 15 Mo. App., loc. cit. 320, it is said: "The appellant complains that, after the parties had submitted their instructions to the court, the court took the questions of law thereby presented under advisement [the italics are superadded], and held them under advisement until a future term, when, without notifying the parties to be present, the learned judge came into court and rendered his decision upon these instructions, and at once gave judgment for the defendant, whereby the plaintiff was deprived of the opportunity of taking a nonsuit. If these were the real facts, the action of the court was erroneous. Lawrence v. Shreve, 26 Mo. 492. But it does not appear that these were the facts." (The italics are superadded.) The court then quotes the record entries, and shows that the court did not simply take the questions of law presented by the parties under advisement, as the plaintiff contended, but that the case was submitted to the court "upon the evidence and proofs adduced, and the court takes time to consider thereof." The court further points out that, if the plaintiff had not intended to finally submit the case upon both the law and the facts, he should have notified the court that he desired to submit only the questions of law, and that he desired to take a nonsuit if the ruling of the court upon the law was adverse to him.

In Wilson v. Stark, 42 Mo. App. 376, the facts were that the case was tried and submitted, and taken under advisement by the court. No instructions were asked. Thereafter, on October 25, 1889, "the judge of the court was proceeding to announce its decision in defendant's favor, when, at the request of plaintiff's counsel, the finding and judgment were withheld, to permit plaintiff's counsel to prepare and submit declarations of law. Subsequently, and during the same term, to wit, November 1, 1889, the plaintiff's counsel did submit several instructions. The court immediately took up the cause and passed on the instructions, giving some and refusing others. Thereupon plaintiff asked leave to take a nonsuit, which the court denied, and proceeded, over the objections of the plaintiff, to enter a judgment in the cause." The Kansas City Court of Appeals held that it was error to refuse to allow the plaintiff to take a nonsuit under such circumstances. And that judgment of that Court of Appeals was manifestly right. For when the case was originally submitted no instructions were asked, and, when about to enter a judgment, the court, at the plaintiff's request, withheld the finding and judgment so as to permit the plaintiff's counsel to prepare and submit declarations of law. This was clearly a setting aside of the original submission, and a reopening of the case to let in matters that were not before the court when the case was originally submitted. Then, when the instructions were asked and ruled on, and before the case was again submitted to the court, the plaintiff asked leave to take a nonsuit, and the court denied the request. The plaintiff was clearly within the protection of the statute, and the ruling of the Kansas City Court of Appeals in reversing the judgment was correct. There is no conflict between this decision and that of the St. Louis Court of Appeals in McLean v. Stuve, 15 Mo. App., loc. cit. 320, for in the latter case it was clearly said the action of...