Lewis v. Center Creek Mining Co.

• Decision Date: 21 November 1906
• Parties: LEWIS v. CENTER CREEK MINING CO. et al.
• Court: Missouri Supreme Court

97 S.W. 938

199 Mo. 463

LEWIS v. CENTER CREEK MINING CO. et al.

Supreme Court of Missouri, Division No. 1.

November 21, 1906.

APPEAL—REVIEW—VOLUNTARY NONSUIT—EXCEPTION.

Where the judge declared his intention to give an instruction in the nature of a demurrer to the evidence, whereupon the plaintiff took nonsuit with leave to set it aside, but took no exception to any ruling of the court except that refusing to set aside the nonsuit on his motion therefor, the nonsuit was voluntary and the refusal to set it aside could not be reviewed on appeal.

Appeal from Circuit Court, Jasper County; Hugh Dabbs, Judge.

Action by J. F. Lewis against the Center Creek Mining Company and another. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Howard Gray, for appellant. W. R. Robertson, for respondents.

GRAVES, J.

For the purpose of determining the vital question in this case, which determination must be against appellant, an extended statement of facts is not required. Appellant correctly and concisely summarizes the petition in this language: "This suit was commenced in the circuit court of Jasper County, Mo., on November 13, 1901. The petition is in two counts as follows: The first count alleging that defendants had sunk a shaft on lot fifty-eight (58) in a certain addition to the city of Webb City, Mo., and had cut drifts therefrom, and were engaged in taking zinc and lead ores from said drifts; that the plaintiff was the owner of lot sixty (60) in said addition to said city, and that the defendants drove drifts from their said lot onto the lot of plaintiff and took and carried away therefrom a large quantity of zinc and lead ore of a certain value, for which he asks judgment. The second count alleging the same facts about the two lots and the taking of the ore therefrom, and prayed for damages on account of injury to the property of plaintiff." Answer was a general denial. Plaintiff, now appellant, offered oral and documentary evidence, all of which was admitted. Singular to say, in the whole record, but one objection was made and exception saved as to the introduction of evidence. This objection was made by the defendant and overruled by the court, and plaintiff had the benefit of the evidence. At the close of plaintiff's evidence, the record recites: "Thereupon the plaintiff rested his case and the defendant asked the court to give an instruction to the jury in the nature of a demurrer to plaintiff's case, and, upon the court declaring his intention to give said instruction, the plaintiff took a nonsuit, with leave to set the same aside. And thereafter, on the same day, the court caused the following judgment to be entered of record as follows, to wit: [Caption omitted.] Now on this day this cause comes on for trial, the plaintiff appearing by Howard Gray, his attorney, and the defendants appearing by H. W. Curry, their attorney, and both sides announce ready for trial, and thereupon comes the following jury: * * * Twelve good and lawful citizens of Jasper county, qualified by law to serve as a jury in this cause, and thereupon the trial is begun, and, after hearing a part of the evidence, the plaintiff takes a nonsuit, with leave to file a motion to set the same aside. And afterwards, during said regular term of court and within four days after the judgment aforesaid, the plaintiff filed his motion to set aside nonsuit in said cause, as follows: [Caption omitted.] Now on this day comes the plaintiff in the above entitled cause and moves the court to reinstate this cause and to set the same for hearing for the following reason, to wit: Because the court erred in compelling the plaintiff to take a nonsuit in order to save the court directing the jury to find a verdict for the defendants. * * * Which said motion to set aside nonsuit was, by the court, on the 24th day of May, 1902, during said regular term, overruled; to which action, ruling, and refusal of the court to grant plaintiff a new hearing herein, the plaintiff at the time fully excepted and still excepts. Thereupon the plaintiff filed his affidavit for an appeal, and appeal was allowed by the court to the Kansas City Court of Appeals and plaintiff given until on or before the first day of the next regular term of court within which to file his bill of exceptions in said cause. * * * And now on this 25th day of November, 1902, within the time so allowed and extended by the court for the plaintiff to file herein his bill of exceptions, comes the plaintiff and prays the court that the same may be signed, sealed and made a part of the record herein. Which is accordingly done the day and year last above written. Hugh Dabbs, Judge Div. No. 2, Jasper County Circuit Court." We have omitted the several orders extending the time for filing bill of exceptions. The case was certified by the Kansas City Court of Appeals on account of the amount claimed in the petition, said amount being in excess of $5,000. Hence the necessity for an adjudication here.

On the foregoing state of the record the respondent contends that the nonsuit taken by plaintiff, now appellant, was voluntary and for that reason there is nothing here for this court to review. Respondent contends, and the record shows, that the first exception taken and preserved by the appellant was to the action of the trial court in overruling his motion to set aside the nonsuit by him taken; that the record fails to show the giving of any instruction directing a verdict against appellant, or the sustaining of a demurrer to his testimony. Under the record in this case we are of opinion that respondent's contention should be sustained. Greene County Bank v. Gray, 146 Mo. 568, 48 S. W. 447; McClure v. Campbell, 148 Mo., loc. cit. 112, 49 S. W. 881; Kelly-Goodfellow Shoe Co. v. Prickett, 84 Mo. App., loc. cit. 100; Carter v. O'Neill, 102 Mo. App. 391, 76 S. W. 717. It will be...