Graham v. Parsons

88 Mo. App. 385 | Mo. Ct. App. | 1901

BLAND, P. J.

At the close of plaintiff’s evidence the following occurred: “Thereupon the defendants offered a demurrer to the evidence, stating that the plaintiff could not recover a verdict against the defendants under the statement and the evidence produced, and the court intimating that said demurrer would be sustained, the plaintiff asked leave to take a nonsuit with leave to move to set aside the same. To which action of the court intimating that the defendant’s demurrer would be sustained, the plaintiff then and there excepted at the time.”

In due time plaintiff moved to set aside the nonsuit. T-Tis motion was unsuccessful and he appealed.

It seems to us that plaintiff prematurely took a nonsuit. He should have waited until the court made an affirmative ruling on the demurrer to his evidence. An intimation from the court that it would sustain the demurrer was not a ruling of the court, but the mere expression of an opinion, which could not affect the plaintiff’s right to submit his case to the jury. It was not an adverse ruling. There was time and opportunity for the court to have changed its opinion before it made a formal ruling on the demurrer, and it might have done so, had not the plaintiff deprived it of that opportunity by taking a nonsuit. And we hold that the nonsuit was voluntary. A non-suit is not involuntary unless the circuit court’s action is such as to preclude the plaintiff from a recovery. Long v. Cooke, 60 Mo. 564; State ex rel. v. Gaddy, 83 Mo. 138; Hageman v. Moreland, 33 Mo. 86. Where the plaintiff suffers a voluntary nonsuit, he can not appeal from his own voluntary action. Chouteau v. Rowse, 90 Mo. 191; Poe v. Dominic, 46 Mo. 113; Holdridge v. Marsh, 28 Mo. App. 283. "Wherefore, the appeal is dismissed.

All concur.