Dowd v. Winters

20 Mo. 361 | Mo. | 1855

Leonard, Judge,

delivered the opinion of the court.

The facts put in issue by the pleadings are the jurisdiction of the mayor’s court, and the materiality of the testimony given upon the trial there.

In the briefs submitted to us, it has been insisted, on the part of the appellant, that there is no variance between the allegation and the judicial proceeding offered,in evidence, and therefore, the nonsuit ought to be set aside; and on the part of the. respondents, that the plaintiff gave no evidence of the jurisdiction of the mayor’s court, (the act conferring jurisdiction upon him not having been put in evidence,) without which the plaintiff could not have recovered ; and that, for that reason, the nonsuit ought to stand.

1. The allegation is of a judicial proceeding between the city of Weston and Elizabeth Winters, and the proof offered of a judicial proceeding between the city of Weston and Elizabeth Winters and her husband, Jacob Winters; and that this is no variance, is settled in Hibler v. Servoss, (6 Mo. Rep. 24,) which must control this point.

2. In order to make out the jurisdiction of the mayor’s court, and the materiality of the plaintiff’s evidence before bim, it was necessary to show in evidence the alleged judicial proceeding. The law has not prescribed the .order in which parties shall introduce their evidence upon a trial, but has left the matter to the discretion of the tribunals in which the trials occur; and the courts, in practice, generally leave it to the parties themselves, to take their own order, in the introduction of their testimony. According to the course of business, the rejection of any material evidence^ offered by the plaintiff and necessary to bis recovery, puts a stop to the trial at the point where it occurs, the party taking a non-suit and bringing bis case here, if dissatisfied with the opinion ; and this ccrart, construing the record with reference to the practice, has never, we believe, refused to set aside a nonsuit, where the evidence was improperly rejected, either on the ground that it did not appear on the record that the plaintiff was prepared with proof on the other material facts of bis case, (Hart v. Rector, 7 Mo. Rep. 532,) or because the evidence may have been rejected on account of its being introduced out of the order of time prescribed by the court.

We think, then, there being no variance in tbe point stated, and no other objection being suggested to us, that tbe proof was improperly rejected, and that tbe judgment must be reversed, and tbe cause remanded for a new trial; and tbe other judges concurring, it is so. ordered.