Turr v. Terminal Railroad , 277 Mo. 235 ( 1919 )

FARIS, J.

Plaintiff sued defendant for the alleged tortious killing of her husband by one whom she averred to have been an employee of defendant. Having failed, as she deemed, to prove upon the trial that the person who killed her husband was in -fact the servant of defendant at the time her husband was killed, she took a voluntary nonsuit.

Afterwards, at the same term, plaintiff filed her motion to set aside this nonsuit and re-instate the case upon the trial docket; which motion the court nisi sustained. Thereupon, and at the same term, but nine days after the case was thus re-instated upon the docket, defendant filed its motion to vacate the order re-instating the same. This motion the court overruled, and from the latter order overruling the defendant’s motion to vacate the order of re-instatement, the defendant took and now prosecutes its appeal.

Since no statement of the facts adduced upon the trial will in any degree shed light upon the questions up for ruling, we deem it unnecessary to lengthen our views by a recital of these facts. There are hut two points made in the case; one of these is raised by the defendant, and the other by the plaintiff.

Defendant, who is the appellant here, insists that the trial court had neither authority nor discretion to allow a re-instatement of the case after plaintiff upon a failure of her proof had taken a voluntary nonsuit. "Without squarely meeting this proposition, plaintiff insists that an appeal will not lie from the action of the trial court in refusing to vacate the order re-instating the case upon the docket after plaintiff had voluntarily taken a nonsuit therein. So stand the contentions, and it is obvious that since by'plaintiff’s contention our jurisdiction to entertain this appeal is attacked, we must in limine determine the question raised, which is: Will an appeal lie from the trial court’s action in refusing to vacate an. order re-instating a cause where plaintiff therein from lack of proof takes a voluntary nonsuit ?

Our statute which prescribes the cases wherein appeals lie reads thus:

“Any party to a suit aggrieved by any judgment of any circuit court in any civil cause from which an appeal is not prohibited by the Constitution, may take his appeal to a court having appellate jurisdiction from any order granting .a new trial, or in arrest of judgment, or order refusing to revoke, modify or change an interlocutory order appointing a receiver or receivers, or dissolving an injunction, or from any interlocutory judgments in actions of partition which determine the rights of the parties, or from any final judgment in the case, or from any special order after final judgment in the cause; but a failure to appeal from any action or decision of the court before final judgment shall not prejudice the right of the party so failing to have the action of the trial court reviewed on an appeal taken from the final judgment in the case The Supreme Court shall summarily hear and determine all appeals from orders refusing to revoke, modify or change an interlocutory order appointing a receiver or receivers, and for that purpose shall, on motion, advance the same on its docket.” [Sec. 2038, R. S. 1909.]

It is fairly obvious that an appeal from the action of the circuit court in refusing to set aside an order re-instating upon the docket a ease wherein, at the same term, a voluntary nonsuit was taken, does not fall within any of the classes of cases mentioned in the statute supra. In short, it is neither a final judgment, nor is it provided for, or to be found either expressly or impliedly among any of the orders set out in the statute from which an appeal lies. [Holdridge v. Marsh, 28 Mo. App. 283; 3 C. J. 504.] Since appeals are matters which are wholly governed by statute, it follows that where there is no statute allowing an appeal, no appeal will lie. [Millar v. Transit Co., 216 Mo. 99; Bussiere’s Admr. v. Sayman, 257 Mo. 303; Holdridge v. Marsh, supra.] This view disposes of the case and renders it unnecessary to discuss whether the trial court possesses either the power or discretion to reinstate upon the trial docket a case wherein a voluntary nonsuit was taken, when such re-instatement is permitted at the same term at which the nonsuit was taken. This appeal was prematurely taken; let it be dismissed.

All concur.