Suess Ex Rel. Suess v. Motz , 220 Mo. App. 32 ( 1926 )

^* Corpus Juris-Cyc. References: Appeal and Error, 3CJ, p. 505, n. 52 New; p. 523, n. 16; p. 524, n. 17; p. 525, n. 18. Dismissal and Nonsuit, 18CJ, p. 1145, n. 6; p. 1156, n. 72 New; p. 1171 n. 46. Juries 35CJ, p. 421, n. 2. Limitation of Actions, 37CJ, p. 1089, n. 18. Plaintiff, an infant suing by her next friend, brought suit for damages for personal injuries alleged to have been sustained by being struck by defendant's automobile.

At the trial, after the case had been submitted to the jury and the jurors had retired to consider their verdict, plaintiff moved to dismiss the case and the court ordered said motion sustained and the cause dismissed without prejudice at the cost of the plaintiff.

Thereafter the defendant filed his motion which is styled, "Motion to amend . . . and to enter final judgment for defendant," in which motion the defendant moved the court (1) toamend the order of dismissal without prejudice to an order of dismissal with prejudice, and, (2) to enter a final judgment for defendant, which motion was by the court overruled.

Thereupon defendant brought an original proceeding in this court asking for a writ of mandamus against the trial judge commanding him to enter final judgment in the case for defendant. Our alternative writ was issued but upon a hearing a peremptory writ of mandamus was denied. [See State ex rel. Motz v. Killoren, 271 S.W. 544.] In this situation the defendant prosecutes this appeal.

Respondent urges that there is nothing before this court to review, contending that the appeal herein was not taken from the final judgment in the case but from the trial court's order overruling appellant's motion to set aside the judgment of dismissal. The point is without merit.

It is no longer open to question but that the action or order of a trial court on a motion to vacate a judgment, whether for irregularity on the face of the record or de hors the record, is the same and in each case is a final judgment from which an appeal or writ of error will lie. [Scott v. Rees, 300 Mo. 123,253 S.W. 998; Scott v. Crider (Mo. App), 272 S.W. 1010; McClure v. National Life Accident Ins. Co. (Mo. App.), 272 S.W. 1049.]

It is conceded in light of section 1410, Revised Statutes of Missouri, 1919, which specifically provides that a 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 afterwards," that the trial court had no authority to permit plaintiff to take a nonsuit 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 is at once observable that the facts in this case present a most unusual situation. Because of the error of the trial court in sustaining plaintiff's motion to dismiss after the case on trial had been submitted to the jury, if defendant's motion can be viewed as in effect a motion to set aside the judgment of dismissal and to reinstate the cause on the docket, such motion should have been sustained.

However an examination of defendant's motion filed after the nonsuit was allowed plaintiff, clearly shows that the defendant did not seek to have the judgment of nonsuit as such set aside, but sought to have the court, (1) "strike out from the order . . . the words, ``without prejudice' and insert in lieu thereof, ``with prejudice,' so that the order in part will read, ``. . . . and the court doth order that this cause be and the same is hereby dismissed with prejudice at the cost of the plaintiff.'" . . . (2) to have, "the court to enter a final judgment for defendant."

That the defendant in filing his said motion below did not intend thereby to move to have the court set aside the judgment of nonsuit as such and reinstate the cause is borne out by the relief asked for here on appeal. The appellant, whilst candidly admitting that the anomalous situation presented by the instant case cannot be measured by any precedent that he has found, yet seriously argues that since the jury in the case at the time of its dismissal below stood eight to four in favor of the defendant (which fact it is admitted was known to one of counsel for plaintiff below and was the reason for his dismissing the cause and having the jury discharged) that this court should here on appeal rule that the trial court erred in overruling defendant's motion below and reverse and remand the case with directions to the trial court to enter a judgment for defendant as on the merits. We are clear in the view that the trial court was without jurisdiction to enter a judgment on the merits absent a verdict from the jury to whom the case had been tried and submitted, and we of necessity hold that the court properly ruled that portion of defendant's motion in overruling it.

As to the request in said motion that the order of dismissal be amended so as to read that the dismissal was "with prejudice," we call attention to the fact that irrespective of the rulings in other jurisdictions, it is definitely settled in this State that a judgment of dismissal and a judgment of nonsuit serve the same purpose and have the same legal effect and arrive at the same end, and hence are treated alike and allowed the same office in everyday administration of law. As was stated by LAMM, J., in Wetmore v. Crouch, 188 Mo. 647, 87 S.W. 954: "It has practically been held that the word nonsuit in the section involved means any judgment of discontinuance or dismissal whereby the merits are left untouched." [See, also, Baldwin v. Davidson, 139 Mo. 118, 40 S.W. 765; Mason v. Ry. Co., 226 Mo. 212, 125 S.W. 1128, and cases therein cited.]

Furthermore defendant would in fact be no better off even though the trial court had forced plaintiff to take an involuntary nonsuit (which under said section 1410 however could not have been done after the case was submitted to the jury) for section 1329, Revised Statutes of Missouri, 1919, permitting a plaintiff to commence a new action from time to time within one year from nonsuit suffered, has been held to apply as well to voluntary as to involuntary nonsuits. [Wetmore v. Crouch, supra; Shaw v. Pershing, 57 Mo. l.c. 422; Bryant v. Fudge, 63 Mo. l.c. 492-3; Hewitt v. Steels, 136 Mo. l.c. 333.]

Again if the trial court had set aside the judgment of nonsuit and reinstated the case upon the motion of defendant below it would not have overcome nor offset the damage done by the entry of the judgment of nonsuit in that the jury to which the case had been submitted, upon the entry of the judgment of nonsuit, had been discharged and the jury could not thereafter be legally reconvened after being discharged from the case. [See Mattice v. Casualty Co., 5 F.2d 233. See also Lummi Bay Packing Co. v. Kryder (Mo. App.), 263 S.W. 543.] It is thus apparent that the error in permitting plaintiff to dismiss his case after submission of the case to the jury, having once been made and the jury dismissed, there is no action which the trial court could have lawfully taken which would have placed the defendant instatus quo ante, but that the defendant would necessarily be subjected to the burden of trying the case again whether the judgment of nonsuit was set aside and the cause reinstated, or if the judgment of nonsuit were permitted to stand and plaintiff commenced a new action.

The situation is indeed an unfortunate one but under the record as it stands the relief sought by defendant on this appeal cannot be afforded him.

In the light of what we have stated above the action of the trial court in overruling defendant's motion to amend the judgment of nonsuit was proper. It follows that its action should be affirmed. It is so ordered. Daues, P.J., and Nipper, J., concur.