National Bank of Commerce v. Butler

• Decision Date: 06 February 1912
• Citation: 143 S.W. 1117
• Parties: NATIONAL BANK OF COMMERCE IN ST. LOUIS v. BUTLER et al.
• Court: Missouri Court of Appeals

143 S.W. 1117

NATIONAL BANK OF COMMERCE IN ST. LOUIS v. BUTLER et al.

St. Louis Court of Appeals. Missouri.

February 6, 1912.

1. DISMISSAL AND NONSUIT (§ 7)—CONDITION OF CAUSE.

Rev. St. 1909, § 1980, providing that a case shall not be dismissed after final submission, is in derogation of the common law, which permitted a dismissal at any time before the final determination, and will not be extended to cases not falling within its express terms.

2. TRIAL (§ 386)—TRIAL BY COURT—DECLARATIONS OF LAW—REOPENING CASE.

The principle which authorizes the court, in its discretion, to reopen a case for the reception of further evidence justifies the court, in a trial without a jury, in setting aside a submission to receive and consider declarations of law to be presented by the plaintiff upon the merits of the case.

3. DISMISSAL AND NONSUIT (§ 7)—CONDITION OF CAUSE—REOPENING CASE AFTER FINAL SUBMISSION.

Where a case, on trial before the court without a jury, was submitted both on the evidence and the law, leave subsequently granted to the plaintiff to file declarations of law upon the merits of the case operated to set aside the submission, though no formal order to that effect was entered, and to take the case out of Rev. St. 1909, § 1980, which provides that a case shall not be dismissed after final submission.

Appeal from St. Louis Circuit Court; Eugene McQuillin, Judge.

Action by the National Bank of Commerce in St. Louis against Ed. Butler and others. From a judgment permitting plaintiff to dismiss, defendants appeal. Affirmed.

Rutledge, Barclay, Fauntleroy & Cullen, for appellant Lewis. T. G. Rutledge, for other appellants. George L. Edwards and Edward D'Arcy, for respondent.

NORTONI, J.

The court permitted plaintiff to dismiss its suit after the cause had been submitted, and from the judgment of dismissal defendants prosecute the appeal.

The suit is on a promissory note. Defendants became indorsers on the note of one Haynes for $5,000, which was subsequently and before maturity assigned to plaintiff for value. The suit proceeds against defendant indorsers alone, and a trial was had before the court without a jury. It appears that on April 16th plaintiff introduced its evidence, consisting of the note, the indorsements, and certificate of presentment and protest. Defendants introduced no evidence whatever, but raised a point with respect to the sufficiency of the notice to charge them as indorsers. After having made their point clear, the case was submitted and taken under advisement by the court. Afterwards, on April 24th, plaintiff filed its motion for an order setting aside the submission of the case and for leave to introduce further evidence, to the effect that the demand notice and protest were waived by defendants. This motion was not acted upon at the time, and on May 15th plaintiff filed another motion, praying the court to permit it to introduce other evidence in the cause. This motion was passed until May 28th, when, it appears from the record, plaintiff, by leave of court, withdrew its motion to set aside the submission, and the cause was argued by the parties on plaintiff's motion to admit further evidence. All of these motions were filed during the same term of the court at which the cause was originally tried and submitted. Besides it appearing from the record that on May 28th the counsel for both parties appeared and argued plaintiff's motion to admit further evidence, the record recites the court granted plaintiff "* * * leave to file declarations of law on the merits of the case." No declarations of law were submitted by plaintiff, but instead, on June 1st thereafter and during the same term, it appeared in court and dismissed the suit. The court permitted the dismissal of the cause as though the prior submission had been set aside, and from this judgment of dismissal defendants prosecute the appeal.

It is argued that, as it appears affirmatively the case was submitted to the court on April 16th, it was no longer competent for plaintiff to dismiss its suit, and that defendants were entitled to an adjudication on the proof then made. At common law, a dismissal or nonsuit could be had at any time before a verdict was returned by the jury or a judgment actually entered by the court, in cases such as this, where a jury is waived, and a trial is by the court. See 6 Ency. Pl. & Pr. 836. But this rule is much modified under the Code, as will appear by reference to section 1980, R. S. 1909, which provides as follows: "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." The uniform construction of this statute in practice has been to allow the party to ascertain the opinion of the court upon the law of the case by its action on instructions, and then withdraw the suit before final submission upon the merits, if the opinion of the court on the proposition of law is unfavorable. But when it unequivocally appears that the cause—that is, the whole controversy, the evidence and the law —is submitted and taken under advisement, and so remains, a nonsuit or dismissal of the cause is not to be allowed thereafter, because the express terms of the statute forbid. See Board of Education v. U. S. F. & G. Co., 155 Mo. App. 109, 134 S. W. 18; Lawyers' Co-Op. Pub. Co. v. Gordon, 173 Mo. 139, 73 S. W. 155; Lawrence v. Shreve, 26 Mo. 492. But, as we understand it, this rule prevails only in those cases where the cause has been finally submitted, and such submission has not been subsequently set aside by the court before the nonsuit is taken. The right to take a nonsuit or dismiss a cause is essential to an efficient administration of the law, and oft enables justice to prevail when otherwise it would miscarry. As has been well said, the most righteous cause is liable to fail now and then from unforeseen contingencies, accidental omissions, and mistakes in procedure, or other circumstances unconnected with the merits, and, but for the rule allowing a nonsuit, substantial rights would perish, and the principles of justice be too often defeated. It was because of this the common law permitted a dismissal until a verdict was returned by the jury, or a judgment actually entered by the court in cases tried by it. Our statute, above copied, is in derogation of the common law; for it prescribes a limitation upon the more extended right theretofore enjoyed, to the effect that a nonsuit may not be allowed after the case is finally submitted to the jury or to the court. Because of this, the rule of the statute is not to be extended beyond its letter to cases not falling within its express provisions. See Houston's Adm'r v....