Smith v. Hurt

• Decision Date: 20 May 1918
• Docket Number: No. 12839.,12839.
• Citation: 203 S.W. 625
• Parties: SMITH v. HURT.
• Court: Missouri Court of Appeals

203 S.W. 625

SMITH v. HURT.

No. 12839.

Kansas City Court of Appeals. Missouri.

May 20, 1918.

Appeal from Circuit Court, Cooper County; Jack G. Slate, Judge.

"Not to be officially published."

Action by Fred G. Smith against W. A. Hurt. From an order overruling defendant's motion to have cause reinstated after plaintiff had dismissed his suit, defendant appeals. Affirmed.

John Cosgrove, of Boonville, for appellant. Cliff Langsdale, of Kansas City, for respondent.

TRIMBLE, J.

This is an action brought to the May, 1917, term of the Cooper county circuit court, upon a promissory note executed and delivered by defendant to one C. G. Safford, and by him assigned to plaintiff. The answer pleaded that the note was obtained by fraud and deceit, that it was without consideration, and that plaintiff took said note with notice. Plaintiff dismissed his suit, and afterward defendant filed a motion to have the cause reinstated and the issues set up in the answer tried and determined. The court overruled this motion, whereupon defendant appealed.

There is no set-off or counterclaim contained in defendant's answer. It alleged facts which, if true, would have shown that defendant was entitled to bring a suit for the cancellation of said note in a case where that right was properly stated and such relief demanded; or, in other words, the answer may be regarded as disclosing that defendant had grounds whereon he could have maintained a separate action for the cancellation of the note described by plaintiff's petition. But, strictly speaking, the matter pleaded by the answer shows that plaintiff never had a cause of action, and the answer was therefore nothing more than a mere defense. By section 1980, R. S. Mo. 1909, plaintiff is given the right to dismiss his case at any time before it is finally submitted, and by section 1979 he may dismiss his case in vacation upon the payment of costs. By section 1878, R. S. Mo. 1909, it is provided that, where "a set-off or counterclaim shall be filed" by the defendant, the dismissal or any other discontinuance of the plaintiff's action "shall not operate to dismiss or discontinue such set-off or counterclaim."

Prior to the enactment of said last-named section, our Supreme Court construed the other two statutes as giving a plaintiff, except in certain special proceedings, the absolute and unconditional right to dismiss or take a nonsuit at any time before final submission. Atkinson v. Carter, 101 Mo. App. 477, 485, 74 S. W. 502. And this was so even in cases where a true set-off or counterclaim had been filed. Lanyon v. Chesney, 209 Mo. 1, 7, 106 S. W. 522. At page 8 of 209 Mo., at page 524 of 106 S. W. of this last decision, the opinion in the Atkinson Case was quoted with approval, holding that the enactment of said section 1878 did not modify, qualify, or abridge the right of a plaintiff to dismiss, and holding further that "the rule prevails in this state that in all ordinary actions at law or in...