Chouteau v. RowseChouteau v. Rowse
On the twenty-ninth of October, 1868, the respondents 'began suit against the appellant in the circuit court of the county- of St. Louis, to recover ten thousand dollars, alleged to have'been paid November 30, 1867, to appellant, as tax collector, by respondents, on account of their taxes, but not applied by appellant to such taxes. The latter answered denying the matters
Afterwards, June 22, 1874, the respondents again sued apj)ellant in the same court, on the same cause of action, and appellant answеred, denying the matters alleged, and pleading the bar of the statute of five years limitation thereto. The respondents, to avoid the latter plea, replied that they instituted this present suit within one year after the former suit was terminated. The cause, upon these issues, was heard February 16, 18S8, and the said circuit court declared the law upon the foregoing facts to be, that the claim of respondents was barred by the statute of limitations, and thereupon respondents suffered a non-suit with leave, аnd failing to get the same set aside, appealed the cause to the St. Louis Court of Appeals, where the said judgment of non-suit was reversed, and in due time appellant, Rowse, appeаled the cause to this court.
It is conceded that the present suit was not commenced within one year after thejudgment of non-suit was rendered by the circuit court, but that it was commenced within one yеar after the said judgment on plaintiff’s appeal to this court was affirmed, on-the twentieth of April, 1874, thе case being reported in
This proposition is denied by plaintiffs, and they affirm that the action having been brought within one year ■after the rendition of the judgment by this court affirming the judgment of the circuit court, is not barred acсording to the true intent, meaning, and spirit of said . section, but is thereby saved. Counsel for defendant, in an argument more ingenious than sound, insists that ‘ ‘ ita lex scripta est,” and that the statute should be literally and strictly construed, without regard to thаt ■other maxim, “ que haeret in liter a, haeret in corticeP In so far as the act in question has been construed by this court, it has been literally construed with a view to accomplish the purpose of its enactment. Shaw v. Pershing,
It will be observed that the statute dоes not in terms provide that the suit shall be brought within one year after non-suit is taken or judgment of non-suit entered, but within one year after such non-suit is suffered. When, in contemplation of this statute, may it be said that a party has suffеred a non-suit ? I think it is when a judgment of non-suit is entered, to the enforcement of which no legal impediment exists. Non-suits are either voluntary or involuntary, and it is held in the case of Shaw v. Pershing, supra, that both are included in, and referred to by, the act. When a voluntary non-suit is taken, the plaintiff abandons his suit and it is ended ; and we have held that from the judgment entered upon it, no appeal will lie, and in such case the judgment is operative and enforceable, and the party thus suffering the non-suit must, to be protected by the statute, bring
But not so in the сase of an involuntary non-suit, which the plaintiff, by some adverse ruling of the court, is driven or compellеd to take, with leave to move to set the same aside with a view not to abandon the prosecution of the suit, but to further prosecute it by appeal, to test the correctness of such ruling. Such appeal, when taken, removes the cause from the circuit to the appellate court, and, when bond is given, as in this case, the judgment of non-suit is superseded, and сan only become operative and enforceable in the event of its being affirmed by the appellate court, and it is only when so affirmed that a plaintiff, in contemplation of this statute, can be said to suffer a non-suit. If the legislative intent was, as contended for by counsel, that intent could, and doubtless would, have been unmistakably expressed by making the section read, if any action shall havе been commenced within the times respectively prescribed in this chapter, and a judgment of nоn-suit is rendered, either upon a voluntary or involuntary non-suit, the plaintiff may commence a new action within one year after the rendition of such judgment.
The judgment of the St. Louis Court of Appeals, reversing the judgment of the circuit court, is hereby affirmed,