The Lawyers' Co-Operative Publishing Co. v. Gordon
Decision Date | 18 March 1903 |
Citation | 73 S.W. 155,173 Mo. 139 |
Parties | THE LAWYERS' CO-OPERATIVE PUBLISHING COMPANY v. GORDON, Appellant |
Court | Missouri Supreme Court |
Transferred from Kansas City Court of Appeals.
Reversed and remanded (with directions).
Curtis Haydon, N. T. Gentry and E. W. Hinton for appellant.
(1) If the reason assigned by the trial court in its order is insufficient to warrant the granting of a new trial, then the order must be reversed unless respondent affirmatively justifies the action of the court on some other ground; and hence, counsel for the appellant here thought it unnecessary in the first instance to go beyond the reason given. Miller v. Cor. Co., 130 Mo. 517; Candee v Railroad, 130 Mo. 142. (2) The offer to take a nonsuit after the submission of the cause and after the verdict had been announced, came too late, and, hence, the refusal of the court to permit a nonsuit at that stage of the case constituted no ground for a new trial. R. S. 1899, sec. 639; Brewing Co. v. Smith, 59 Mo.App. 476; Reed v. Reed, 39 Mo.App. 473.
W. H. Truitt, Jr., for respondent.
The demurrer having been taken under advisement should have been called up by the court and passed on before the verdict and judgment was entered; otherwise, there is no final submission. Lawrence v. Shreve, 26 Mo. 492; Mayor v. Old, 51 Mo.App. 217; Wilson v. Stark, 42 Mo.App. 376; 2 Thompson on Trials, 158; Smith v. Sedalia, 152 Mo. 296; Hewitt v. Steele, 118 Mo. 463; Bank v. Wood, 124 Mo. 76.
This is an action of assumpsit, on account, to recover a balance of one hundred dollars, for goods sold and delivered to defendant at his request. The answer is a general denial, supplemented by a special plea that the plaintiff is a foreign corporation and has never complied with the laws of this State respecting foreign corporations, and therefore is not entitled to sue. Upon the trial the plaintiff offered the deposition of its treasurer who testified to the state of the account, and the plaintiff then called the defendant, by whom it showed a written contract for the sale of the goods, and whose testimony further tended to show that the plaintiff had not performed its part of the written contract, and had not delivered all the goods contracted for and embraced in the account sued upon, and that he had paid for all the goods delivered, except perhaps two of the books, as to which he was uncertain.
The record then shows the following order:
The plaintiff, in due time, filed a motion for a new trial, alleging, inter alia, error of the court in refusing to allow the plaintiff to take a nonsuit. Thereafter the court entered the following order:
The defendant saved proper exception to this ruling of the court, and filed a motion to set it aside, which being overruled, he appealed to the Kansas City Court of Appeals. That court affirmed the judgment below, but transferred the cause to this court, because one of the judges of that court deemed the decision to be in conflict with the decision of the St. Louis Court of Appeals in the case of McLean v. Stuve, 15 Mo.App. 317, and, therefore, under section 6 of the amendment of 1884 to article 6 of the Constitution, this court has jurisdiction, and must rehear and determine the case as in case of jurisdiction obtained by ordinary appellate process.
I.
The ruling of the trial court in sustaining the plaintiff's motion for a new trial "for the purpose of permitting plaintiff to take a nonsuit," is the vital point involved here.
The Kansas City Court of Appeals affirmed this ruling on the ground that the trial court erred in refusing to allow the plaintiff to take a nonsuit, and corrected that error by the ruling in question. That appellate court cited two cases decided by it, in support of its decision, to-wit, Wilson v. Stark, 42 Mo.App. 376, and Mayer v. Old, 51 Mo.App. 214. And counsel for plaintiff supplements these references with the case of Lawrence v. Shreve, 26 Mo. 492.
It is said these cases lay down a different rule from that announced in McLean v. Stuve, 15 Mo.App. 317.
But a careful analysis of these cases and a differentiation of the facts in judgment will show that there is no such difference between the decisions of the two Courts of Appeals in their prior decisions, and that no such conflict exists between such prior decisions of the two Courts of Appeals and the decision of this court in Lawrence v. Shreve, supra.
Section 639, Revised Statutes 1899, provides: "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."
This statute has been in force since before the decision in Lawrence v. Shreve, 26 Mo. 492, which was in 1858, except that the words, "and not afterward," were added in the revision of 1865.
Necessarily all of the cases have gone off upon an application of this statute to the facts in each case, and the construction of the meaning of the statute as to when a case is finally submitted.
In McLean v. Stuve, 15 Mo.App. 317, it is said: [The italics are superadded.]
The court then quotes the record entries and shows that the court did not simply take the questions of law presented by the parties under advisement, as the plaintiff contended, but that the case was submitted to the court "upon the evidence and proofs adduced, and the court takes time to consider thereof." The court further points out that if the plaintiff had not intended to finally submit the case upon both the law and the facts, he should have notified the court that he desired to submit only the questions of law, and that he desired to take a nonsuit if the ruling of the court upon the law was adverse to him.
In Wilson v. Stark, 42 Mo.App. 376, the facts were that the case was tried and submitted and taken under advisement by the court. No instructions were asked. Thereafter, on October 25, 1889, The Kansas City Court of Appeals held that it was error to refuse to allow the plaintiffs to take a nonsuit under such circumstances. And that judgment of that Court of Appeals was manifestly right. For when the case was originally submitted no instructions were asked, and when about to enter a judgment, the court, at the plaintiffs' request withheld the finding and judgment so as to permit the plaintiffs' counsel to prepare and submit declarations of law. This was clearly a setting aside of the original submission, and a reopening of the case to let in matters that were not before the court when the case was originally submitted. Then, when the instructions were asked and ruled on and before the case was again submitted to the court, the plaintiff asked leave to take a nonsuit, and the court denied the request. The plaintiff was clearly within the protection of the statute, and the ruling of the Kansas City Court of Appeals in reversing the judgment was correct.
There is no conflict between this decision and that...
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