State v. Killoren
| Decision Date | 14 April 1925 |
| Docket Number | No. 19123.,19123. |
| Citation | 271 S.W. 544 |
| Parties | STATE ex rel. MOTZ v. KILLOREN, Circuit Judge. |
| Court | Missouri Court of Appeals |
Wood & Teesdale, of St. Louis, for relator.
McMahon & Berthold, of St. Louis, for respondent.
This is an original proceeding instituted in this court asking for a writ of mandamus against the respondent, one of the judges of the circuit court of the city of St. Louis, commanding him to enter final judgment in the case of Suess v. Motz. An alternative writ was issued, and the issues were made up from the pleadings. The case of Suess v. Motz was being tried before the respondent, and, after the case had been finally submitted to the jury, and the jury retired and were deliberating upon a verdict, respondent permitted plaintiff, through her attorney, to dismiss her suit, and the respondent entered an order dismissing said cause without prejudice. Relator filed a motion asking the court to amend the order of dismissal without prejudice so as to enter a final judgment for the defendant, and by some affidavits attached to this motion it was shown that the majority of the members of the jury were in favor of a judgment for defendant at the time plaintiff's counsel dismissed her cause.
Section 1410, R. S. 1919, with respect to dismissals, reads as follows:
It is clear that under the provisions of this statute Suess was not entitled to the order of dismissal at the time it was granted by the court. The relator permitted an order to be made which he had no authority to do at that time. The statute above quoted prohibits a plaintiff from dismissing his or her suit after the case is finally submitted to the jury. Lawyers' Co-Operative Publishing Co. v. Gordon, 173 Mo. 139, 73 S. W. 155. The facts of this case present a rather anomalous situation. The relator does not ask us to compel the trial judge to reinstate the case on the docket, but seeks to have us compel him to enter judgment for the defendant. In order words, relator asks us to compel the respondent to...
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Fenton v. Thompson
...voluntary dismissal of the case under such circumstances was not reviewable by either appeal or writ of error. In the case of State ex rel. Motz v. Killoren, supra, it was that mandamus would not lie to compel a circuit judge to enter a final judgment on the merits for defendant, where the ......
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Fenton v. Thompson
...Steel Co., 128 S.W. (2d) 1046, 344 Mo. 756; State ex rel. Am. Asphalt Corp. v. Trimble, 44 S.W. (2d) 1103, 329 Mo. 495; State ex rel. Motz v. Killoren, 271 S.W. 544; Suess v. Motz, 285 S.W. 775. (5) Jury, after being discharged from further consideration of the case, before verdict, cannot ......
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Suess v. Motz
...after submission of the case to the jury. [See Lawyers' Co-Operative Publishing Co. v. Gordon, 173 Mo. 139, 73 S.W. 155; State ex rel. Motz v. Killoren, supra.] It at once observable that the facts in this case present a most unusual situation. Because of the error of the trial court in sus......
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Nordquist v. Armourdale State Bank
... ... Under ... the statute, therefore, the attempted dismissal was void ... [State ex rel. Potter v. Riley, 219 Mo. 667, 118 ... S.W. 647; Lawyers' Cooperative Pub. Co. v ... Gordon, 173 Mo. 139, 73 S.W. 155; State ex rel. Motz ... v. Killoren (Mo.), 271 S.W. 544; Suess v. Motz, ... 220 Mo.App. 32, 285 S.W. 775.] This is the case for another ... reason, also. Said section 1410 of the statutes provides that ... the plaintiff "shall be allowed to dismiss" under ... the conditions named; and while the court will ordinarily ... permit ... ...