State v. Anderson

• Decision Date: 21 December 1916
• Docket Number: No. 19392.,19392.
• Citation: 269 Mo. 381,190 S.W. 857
• Parties: STATE ex rel. J. HAHN BAKERY CO. et al. v. ANDERSON, Circuit Judge.
• Court: Missouri Supreme Court

190 S.W. 857

269 Mo. 381

STATE ex rel. J. HAHN BAKERY CO. et al. v. ANDERSON, Circuit Judge.

No. 19392.

Supreme Court of Missouri. In Banc.

December 21, 1916.

Original proceedings in mandamus on the relation of J. Hahn Bakery Company and another against Thomas L. Anderson, Judge of the Circuit Court of the City of St. Louis, presiding in division 7 of said circuit court. Alternative writ made absolute.

Earl M. Pirkey, of St. Louis, for relators. Adolph Abbey, Wendell Berry, and Fauntleroy, Cullen & Hay, all of St. Louis, for respondent.

FARIS, J.

This is an original proceeding by mandamus, whereby it is sought to compel respondent, as the judge of division 7 of the circuit court of the city of St. Louis, to reinstate a certain cause at one time pending in said court, and to grant an appeal therein, from an order sustaining a motion for a new trial.

The facts out of which this instant case grew run thus: At the December term, 1915, there was pending in division 7 of the circuit court of the city of St. Louis, in which division respondent sat as judge, a certain cause wherein Abraham Spivack and another were plaintiffs, and relators herein were defendants, and wherein the sum in dispute was $10,000. The above action coming on for trial before a jury, a verdict was rendered in favor of defendants on January 28, 1916. (For brevity and clarity we will hereinafter refer to the parties in the original suit as "plaintiffs" and "defendants," and to the parties in the instant proceeding as "relators" and "respondent," respectively.) Within the allotted time thereafter, to wit, on February 1, 1916, plaintiffs in said cause filed their motion for a new trial, which was taken under advisement, and carried over by the learned respondent to a day in the February term, 1916, to wit, to March 6, 1916, on which latter date the respondent sustained the motion aforesaid and granted to plaintiffs a new trial, on the ground that the verdict of the jury was against the weight of the evidence. Thereafter on the 7th day of March, 1916, without the knowledge or consent of defendants in said cause, and in their absence and in the absence of their counsel, plaintiffs came into court and dismissed said cause. Thereafter, at the same term in which the motion for a new trial was sustained and the dismissal of said cause was had by plaintiffs, and on the 17th day of March, 1916, defendants therein (who are relators herein), after due notice in such behalf had been served on plaintiffs, came into respondent's court and filed their motion to reinstate said cause, to the end that they might (as they prayed they might be allowed to do) appeal from the order granting the new trial. Relators filed, with said motion for reinstatement of the case and for appeal thereof, a proper affidavit for appeal. Respondent refused to reinstate said cause, or to allow an appeal therein, holding that plaintiffs had the right to dismiss the cause after the sustaining of a motion for a new trial thereof, even though defendants might during the same term of court desire to appeal from the action of the court in such behalf.

The return of respondent admits the facts to be substantially as we set them out. Relators thereupon moved for judgment upon the pleadings, and the case is at issue upon the single point whether a plaintiff, after trial had and verdict rendered, which verdict is set aside upon motion, may take a nonsuit pending the term at which the trial was had, against the consent of a defendant who prays an appeal from the action of the court in granting such new trial.

The precise point here mooted seems to be one of first impression in this state, and to be likewise unique by its rarity in other jurisdictions. While we have a statute which upon a casual reading might seem to cover the case, we are led to suspect that it does not; since we observe that both relators and respondent quote and urge this statute as furnishing a fairly satisfying reason why plaintiffs did and why they did not have the right to take a nonsuit. In this state of the briefs, we may well be excused for entertaining doubts whether a statute thus so confidently relied on by both parties furnishes an answer to the question mooted. The statute thus urged upon our attention reads thus:

"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." Section 1980, R. S. 1909.

We are of the opinion that the above section must be construed in the light of the facts and circumstances existing, and must be modified, if need be, by a consideration of other well-settled principles of law. Two of these principles we think settle this case beyond cavil. They are: (a) That by our practice and by the terms of our statute (section 2040, R. S. 1909) any party authorized, and cæteris paribus entitled to take an appeal may take the same at any time during the term at which the judgment, or order complained of, was rendered; in short, he has the whole of the current term within which to appeal. And (b) if a party entitled otherwise to an appeal be by construction of a statute prevented from the exercise of a right in such behalf given to all others in similar cases, there arises by such construction a refusal of due process of law to him who thus is deprived of his right. State v. Guerringer, 265 Mo. loc. cit. 416, 178 S. W. 67. In the latter case, apposite to the point last herein made, we said:

"For while the right of appeal is not essential to due process of law (Reetz v. Michigan, 188 U. S. loc. cit. 508 [23 Sup. Ct. 390, 47 L. Ed. 563]), yet, if an appeal be allowed to some persons and not to all persons similarly situated, such deprivation of the right to an appeal is equivalent to the denial of...