Piatt v. Heim & Overly Realty Co.

• Decision Date: 26 May 1938
• Docket Number: 35258
• Citation: 117 S.W.2d 327,342 Mo. 772
• Parties: W. H. H. Piatt, Defendant in Error, v. Heim & Overly Realty Company, a Corporation, Plaintiff in Error
• Court: Missouri Supreme Court

117 S.W.2d 327

342 Mo. 772

W. H. H. Piatt, Defendant in Error, v. Heim & Overly Realty Company, a Corporation, Plaintiff in Error

No. 35258

Supreme Court of Missouri

May 26, 1938

Appeal from Jackson Circuit Court; Hon. Daniel E. Bird Judge.

Writ of error quashed.

Henry L. Jost for plaintiff in error.

Plaintiff (defendant in error) asked, and consented to, the circuit court taking the whole case, law as well as facts, and deciding all of the issues at one time; his case therefore stood submitted and he could not thereafter dismiss it, and the court could not terminate the cause, and put the parties out of court, or do otherwise than decide the cause in accordance with such submission. Coffey v. Higbee, 318 Mo. 10; Lawyers' Co-op. Pub. Co. v. Gordon, 173 Mo. 139; Allen v. Hickam, 156 Mo. 49; Board of Education v. United States F. & G. Co., 155 Mo.App 109; McLean v. Stuve, 15 Mo.App. 317; Brewing Co. v Smith, 59 Mo.App. 476.

A L. Cooper and William S. Hogsett for defendant in error.

A writ of error does not lie to review the judgment of voluntary dismissal entered in the circuit court. Holdridge v. Marsh, 28 Mo.App. 285; McFarland v. O'Reilly, 308 Mo. 328; Turr v. Terminal Railroad Assn., 277 Mo. 238; Segall v. Garlichs, 313 Mo. 411; Shanks v. Chicago, Great Western Railroad Co., 273 S.W. 169.

OPINION

Frank, P. J.

During the March, 1935, term of the Circuit Court of Jackson County, there was pending in that court the case of W. H. H. Piatt, plaintiff, v. Heim & Overly Realty Company, defendant. Plaintiff sought to recover the sum of $ 15,000 for attorney fees alleged to have been earned by him in the service of defendant. The cause was assigned to Division No. 8 for trial where a jury was waived and the cause tried to the court on July 5 and 6, 1935. At the conclusion of the evidence on July 6, 1935, defendant's demurrer to the evidence was overruled, whereupon both parties requested certain written declarations of law and asked the court to rule upon them. Thereafter, on the same day the court took the case under advisement as appears from the following record entry.

"Now, on this day come again the same parties herein; the hearing of the evidence is resumed, and the court after hearing the remainder of same takes the cause under advisement."

Three days later, on July 9, 1935, defendant requested two additional written declarations of law.

Thereafter on October 8, 1935, during the September, 1935, term of said court, plaintiff filed a written dismissal of his case reading as follows:

"Now comes the above named plaintiff and respectfully shows to the court that none of the declarations of law requested by the respective parties has either been given or refused by the court, and that this cause has not been finally submitted to the court sitting as a jury; and plaintiff now dismisses this action."

Thereafter on the same day the court rendered and entered of record the following judgment:

"Now on this day comes plaintiff and files herein his dismissal of this action; and the court finding that none of the declarations of law requested by the respective parties has either been given or refused by the court, and that this cause has not been finally submitted to the court sitting as a jury, it is by the court ordered and adjudged that plaintiff be and he is hereby permitted to voluntarily dismiss this action; and that said action be and the same is now voluntarily dismissed, and that defendant have and recover of and from plaintiff its costs herein, for which let execution issue."

Thereafter within due time defendant took the necessary steps looking to an appeal. The trial court denied defendant's application for appeal on the ground that no appeal lies from a judgment dismissing a cause based upon the voluntary dismissal of said cause by plaintiff. Thereafter and within the statutory time defendant brought the case here by writ of error. Plaintiff has filed a motion to dismiss the writ of error on the ground that the judgment dismissing said cause is not reviewable either by appeal or writ of error.

For clarity we will refer to the parties as they were styled below, plaintiff and defendant.

Defendant contends that the cause was tried and finally submitted to the court for decision as to both the law and the facts before the plaintiff attempted to dismiss it, and for that reason the court had no power to dismiss the cause on request of plaintiff.

No one disputes the fact that a plaintiff will not be allowed to dismiss his case after it has been finally submitted to the court or jury for decision. The statute so provides. Section 960, Revised Statutes 1929, reads 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, but not afterward."

Our view of this statue is so well expressed in Bank v. Butler, 163 Mo.App. 380, 384, 143 S.W. 1117, that we quote therefrom the following:

"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 mistake 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 the express provisions. [See Houston's Admr. v. Thompson's Admr., 87 Mo.App. 63.]"

The law is too well settled to need citation of authority to support it, that a plaintiff is entitled to get the court's view of the law of the case by its action on his requested instructions, and then dismiss his case if the court's ruling on the instructions is not in accord with his view of the law. It is equally well settled that where the whole case -- both requested instructions and evidence -- is submitted to the court for its ruling thereon, and the court takes the case under advisement, that amounts to a final submission of the entire case, and a nonsuit or dismissal will not be thereafter allowed. Our query is, which course did the plaintiff pursue in the case at bar. That question must be determined from an examination of the record. In doing so we must keep in mind two things, (1) that the parties...