Wetmore v. Crouch

• Decision Date: 24 May 1905
• Citation: 87 S.W. 954,188 Mo. 647
• Parties: WETMORE, Appellant, v. CROUCH
• Court: Missouri Supreme Court

87 S.W. 954

188 Mo. 647

WETMORE, Appellant, v. CROUCH

Supreme Court of Missouri, First Division

May 24, 1905

Appeal from St. Louis City Circuit Court. -- Hon. Horatio D. Wood Judge.

Reversed and remanded.

J. L Secor and George E. Smith for appellant.

(1) Any plaintiff suffering a nonsuit may commence a new action from time to time, within one year after such nonsuit suffered. R.S. 1899, sec. 4285. (2) The dismissal of plaintiff's suit in her absence and entering of judgment against her for costs, without considering the merits of her case, was a nonsuit within the meaning of section 4285. Meddis v Wilson, 175 Mo. 126; Estes v. Fry, 166 Mo. 70; Nickerson v. Peery, 163 Mo. 77; Bank v. Gray, 146 Mo. 568; Baldwin v. Davidson, 139 Mo. 118; Hewitt v. Steele, 136 Mo. 327; Chouteau v. Rowse, 90 Mo. 191; Shaw v. Pershing, 57 Mo. 416; Herring v. Ponitz, 6 Ill.App. 208; Boyce v. Snow, 187 Ill. 181; 6 Ency. Plead. and Prac., 828; Bank v. Magness, 11 Ark. 343; Belden v. Butchers U.S. H. Co., 38 La. Ann. 391. (3) Being put out of court by judgment of nonsuit on the last day of the term, in her absence, so that she could not set aside judgment by motion, plaintiff is entitled under section 4285, supra, to begin this suit as she did, within the year.

Selden P. Spencer and J. H. Drabelle for respondent.

(1) This cause of action is long since barred by the Statute of Limitations (sec. 4273, R.S. 1899). (2) The dismissal of a case for failure to obey an order of court requiring security for costs to be given is directly authorized by statute, and is not a nonsuit. R.S. 1899, sec. 1543; Robinson v. Transportation Co., 16 R. I. 637; Railroad v. Orr, 52 Miss. 541; Hayes v. Stewart, 23 Vt. 622; Wood on Limitations, p. 691, note 2; Angell on Limitation, sec. 327. (3) Plaintiff's present suit is vexatious and she is not entitled to prosecute it until the costs for the prior case have been paid; and her petition in the present case failing to show such payment of costs, does not state a cause of action. Jones v. Barnard, 63 Mo.App. 505.

LAMM J. Marshall, J., not sitting.

OPINION

LAMM, J.

Cast on demurrer sustained to a seconded amended petition, plaintiff refused to plead over and final judgment went against her and her surety on her cost bond, and she appealed.

To get at the root of the matter, suffice it to say that the general nature and subject-matter of the litigation has once before been spread of record by this court (150 Mo. 671, 51 S.W. 738) and need not again be set forth further than convenient to understand the issue joined on demurrer.

The petition averred that the cause of action accrued in May, 1889, and the allegations claimed to justify the demurrer are as follows:

"Plaintiff further says that on November 22, 1890, she commenced a suit in this court founded upon the same transactions hereinbefore set forth, and prosecuted the same in this court and the St. Louis Court of Appeals, until December 5, 1893, when she suffered a nonsuit therein; that thereafter on April 17, 1894, she filed a second suit founded on the same transaction, in the circuit court of St. Louis county, Missouri, and prosecuted the same to judgment in her favor on January 19, 1900, which judgment was afterwards, on October 6, 1900, set aside by said court's sustaining defendant's motion for a new trial without considering the merit of said motion, but solely on the ground of the death of the trial judge pending said motion; that thereafter plaintiff prosecuted said suit in said court until January 11, 1892 '(1902?)' when she suffered a nonsuit, the court dismissing her suit, in her absence, without a trial on the merits and on the last day of the term, solely for failure of plaintiff to give additional security for costs; that afterwards on April 28, 1902, the present suit was filed in this court.

"Wherefore, the premises considered, plaintiff prays judgment against defendant for six thousand and twenty dollars, the balance of the money, had and received by defendant to and for plaintiff's use, as aforesaid, with interest thereon from May 17, 1889, and for her costs herein."

The demurrer reads:

"Comes now defendant and demurs to the second amended petition in the above entitled cause for the reason that the petition does not state facts sufficient to constitute a cause of action in this that it appears upon the face of the petition that the Statute of Limitations has run against the claim as alleged in the petition."

In the St. Louis Court of Appeals in her first suit (Wetmore v. Crouch, 55 Mo.App. 441), where it went off on the pleadings, and here in her second suit (Wetmore v. Crouch, 150 Mo. 671, 51 S.W. 738), where it was reversed and remanded for a new trial because the court, nisi, forced a nonsuit, this cause has aged somewhat in running the gamut of the courts, with changes of counsel for appellant, now and then, by way of "a new hand at the bellows."

When it went below on our mandate, a rule was entered requiring plaintiff to give additional security for costs and, on her failure to do so, the case was dismissed at the heel of the term. Within a year thereafter the present proceeding was begun, and the sole question for our consideration, under the demurrer, is whether a judgment of dismissal under such circumstances is a "nonsuit" within the purview of our statute. If the entry of dismissal be construed as a nonsuit, then section 4285, Revised Statutes 1899, applies; otherwise, the statute has run and the suit is barred by flux of time; for, assuming the cause of action to have accrued in May, 1889, it is apparent on the face of the petition that the first suit was commenced in 1890 and was pending until December, 1893, and that the second suit was commenced in April, 1894, and was dismissed for failure on January 11, 1902.

These suits, then, were begun before the Statute of Limitations ran. The present suit, however, was filed on April 28, 1902, and the Statute of Limitations had run unless arrested by the provisions of said section, which reads:

"If any action shall have been commenced within the times respectively prescribed in this chapter, and the plaintiff therein suffer a nonsuit, or, after a verdict for him, the judgment be arrested, or, after a judgment for him, the same be reversed on appeal or error, such plaintiff may commence a new action from time to time, within one year after such nonsuit suffered or such judgment arrested or reversed; and if the cause of action survive or descend to his heirs, or survive to his executors or administrators, they may, in like manner, commence a new action within the time herein allowed to such plaintiff, or, if no executor or administrator be qualified, then within one year after letters testamentary or of administration shall have been granted to him."

A broad view of this section -- a view that takes in as well the remedy to be advanced as the mischief to be retarded and that does not deal in mere "mint and anise and cummin," but goes to the weightier matter of the law -- shows that it was in the legislative mind that a litigant should have a day in court -- a trial on the merits of his cause. If the proceedings fell short of that, if the judgment was arrested, or if for plaintiff and reversed on error or appeal, or if some interlocutory matter supervened and thwarted a trial on the merits, then the prescribed period of the Statute of Limitations, ex gratia, should be extended for one year as atonement for the miscarriage of justice. It is apropos to the subject to note that the frosty attitude of courts towards statutes of limitation is attested by the earlier decisions, but all judicial frigidity has dissolved under the benignant sunlight of modern apprehension of the salutary principles underlying such laws and the experiences of commercial peoples. As said by Wood (Wood on Limitations, 3 Ed., sec. 4), "These statutes are declared to be 'among the most beneficial to be found in our books.' 'They rest upon sound policy, and tend to the peace and welfare of society;' and are so construed as to effectuate the intention of the Legislature, although in individual cases they may produce hardship. But if parties will not settle their business matters within reasonable periods before human testimony is lost and human memory fails, on pain of losing the right to a remedy thereon, not the law, but the party, is responsible for the hardship entailed."

But in applying this wholesome rule of construction, it will appear that all the provisions of our Statute of Limitations should be construed together and thus a liberal construction be given to effectuate the purposes of section 4285, as a constituent part of the legislative utterance, as well as to effectuate the purposes of the other provisions of the statute. In this spirit of liberality it was early held that the section in hand applies as well to voluntary as to involuntary nonsuits. [Shaw v. Pershing, 57 Mo. 422; Briant v. Fudge, 63 Mo. 489, 492-3; Hewitt v Steele, 136 Mo. 327, 333, 38 S.W. 82.] This view has not been entertained in some jurisdictions. For example, in Illinois, in Boyce v. Snow, 187 Ill. 181, 58 N.E. 403, it was held that a statute, substantially the same as ours, referred alone to involuntary nonsuits, and it must be admitted that by including voluntary nonsuits within the scope of the statute it is put within the easy power of a plaintiff, sua sponte, to harass a defendant with vexatious litigation, and this point was urged by counsel in the Shaw case, supra. The language of our statute is, "suffer a nonsuit." A close gloss of that phrase might very well have resulted in a holding that, by the use of the word "suffer," the idea of being subjected to a controlling force is suggested, and that...