226 Mo. 212 | Mo. | 1910
Plaintiffs brought this suit in the circuit court of Jackson county, Missouri, for the recovery of damages sustained by them through the alleged negligence of the defendant in causing the death of their son, at Kansas City, Kansas.
The petition in this case was filed August 4, 1906, which stated a good cause of action against the defendant; but as no point is made in that regard, it will receive no- further consideration.
The facts are not disputed, and are stated by counsel for respondent, substantially, as follows:
A former suit was- instituted by plaintiffs to recover damages on account of their son’s death, in the Independence division of the circuit court of Jackson county, Missouri. The action came on for trial at the June term, 1906, of said court, at Independence, and the following proceedings were had: the trial was begun, and plaintiffs introduced all of their testimony, and at the end of plaintiffs’ case, they were forced to take a nonsuit with leave to move to set -the same aside; and afterwards, during the said June term of the Independence court, the plaintiffs duly moved the court to set aside said nonsuit and at said term the court denied said .motion, and thereupon rendered judgment in said ■action in favor of defendant, against plaintiffs. No appeal was taken and no further steps whatever were taken in the cas.e at Independence, but plaintiffs filed this, their second action, in the Kansas City division of the same court on August 4, 1906, within one year from the date of the nonsuit. Following the bringing of this second suit, at Kansas City,
“That on the trial of the issues between the parties hereto, based on the same cause of action, at the June term, 1906, of this court, at Independence, Jackson county, Missouri, plaintiffs took a nonsuit, with leave to move to set the same aside; that at said term, said plaintiffs duly moved the court to set aside said nonsuit, and that at said term said court denied said motion, and thereupon rendered judgment in said action in favor of defendant, against plaintiffs, which judgment was not appealed from by plaintiffs, and that at the time of the filing of the petition in this cause of action, against which this motion to dismiss is directed, the said June term, 1906, of this court, at Independence, Jackson county, Missouri, had duly ended.”
And upon these facts the court sustained the defendant’s motion to dismiss this cause, to which action of the court plaintiffs duly excepted, and from this ruling and order of court the plaintiffs in due time appealed to this court.
I. The real question presented by this record for determibation is, was the action of the trial court in sustaining respondent’s motion to dismiss this suit legal and proper? The correct answer to that question, however, depends upon the proper determination of two or three legal propositions.
The record discloses the fact that plaintiffs brought against defendant a prior suit, setting up the same cause of action that is stated in the petition filed herein. At the June term, 1906, of the circuit court, sitting at Independence, said cause was called for trial,
Counsel for defendant contend, by their motion to dismiss this action, that the foregoing facts are res adjudicatei, and constitute a complete bar to appellants’ right to a recovery herein.
In support of this contention, counsel insist that the plaintiffs in this case did not suffer a nonsuit to go against them in the former suit, but that there was a final judgment rendered by the court in favor of the defendant, and against the plaintiffs, and that they having failed to appeal from that judgment-, it became res adjudicaba, as before stated; and for that reason neither section 2868, as amended by the Act of 1905 (Laws 1905, p. 138), por section 4285, Revised Statutes 1899, is applicable to this case, and are only availing where a nonsuit is suffered.
In support of that insistence, counsel relies upon the case of Wetmcrre v. Crouch, 188 Mo. 653. The statute the court there had under consideration was section 4285, before mentioned, contained in article 2 of chapter 48, entitled “Limitations of Actions.” That section reads as follows:
*217 “If an action shall have been commenced within the times respectively prescribed in this chapter, and the plaintiff therein suffer a nonsuit, or, after a verdict for him, the judgment be arrested, or after a judgment for him, the same be reversed on appeal or error, such plaintiff may commence a new action from time to time, within one year after such nonsuit suffered or such judgment arrested or reversed; and if the cause of action survive or descend to his heirs, or survive to his executors or administrators, they may, in like manner, commence a new action within the time herein allowed to such plaintiff, or, if no executor or administrator be qualified, then within one year after letters testamentary or of administration shall have been granted to him.”
In construing this statute, this court, speaking through Judge Lamm, in the case before cited, on page 652, said: “A broad view of this section — a view that takes in as well the remedy to be advanced as the mischief to be retarded and that does not deal in mere ‘mint and anise and cummin,’ but goes to the weightier matter of the law — shows that it was in the legislative mind that a litigant should have a day in court — a trial on the merits of his cause. If the proceedings fell short of that, if the judgment was arrested, or if for plaintiff and reversed on error or appeal, or if some interlocutory matter Supervened and thwarted a trial on the merits, then the prescribed period of the Statute of Limitations, ex gratia, should be extended for one year as atonement for the miscarriage of justice. It is apropos to the subject to note that the frosty attitude of courts towards statutes of limitation is attested by the earlier decisions, but all judicial frigidity has dissolved under the benignant sunlight of modern apprehension of the salutary principles underlying such laws and the experiences of commercial peoples. As said by Wood (Wood on Lim. [3 Ed.], sec. 4): ‘These statutes are declared to be “among the most beneficial
If we correctly comprehend the position taken by counsel for defendant, they do not contend that said statute as above construed by this court is not applicable- to a case where simply a nonsuit is suffered by plaintiff, but they do insist that in the former case there was not only a nonsuit suffered by plaintiffs, but that the record also shows that a final judgment was rendered against them in that suit, and in favor of the defendant therein, which was never appealed from, but is still in full force and effect. This contention of respondent is based upon the following language, contained in the bill of exceptions filed herein (which, however, does not purport to be a copy of the judgment but only a statement of its legal effect):
In our opinion, counsel misconstrue the meaning of the language quoted. While it is true it states that the court rendered judgment “in favor of defendant, agaiinst plaintiffs,” yet that language must be read in the light of and in connection with that which precedes it, which states that “plaintiffs took a nonsuit with leave to move to set the same aside.,” etc. So, if we read the two clauses last quoted together, then clearly the meaning thereof is that the judgment mentioned was a judgment of nonsuit, and not a final judgment upon the merits, as contended for by counsel for respondent. But suppose we are in error in our construction of the language used, and that the contention placed thereon by counsel is the correct one, then how stands the case? Not one whit more favorable to respondent than it woüld be if it rested upon the construction placed upon it by the court, for the obvious reason that the very language relied upon by counsel as constituting the basis for the contention, that the judgment was final and not one of nonsuit, shows that “plaintiffs took a nonsuit before the court rendered judgment in said action in favor of defendant, against plaintiffs.”
In the case of Wetmore v. Crouch, supra, Judge Lamm, in speaking for the court, said: “It has practically been held that the word ‘nonsuit’ in the section involved means any judgment of discontinuance or dismissal yhereby the merits are left untouched.”
In support of that statement of the law, our learned associate reviews some of the decisions of this and other courts, as shown by the extended quotation before made from that case. To the same effect are the following cases: Waterworks Co. v. School Dist., 23 Mo. App. l. c. 235; West v. McMullen, 112 Mo. l. c. 409, 410 ; State ex rel. v. Railroad, 149 Mo. l. c. 109; Hudson Co. v. Young, 90 Mo. App. l. c. 513; Weithaupt v. St. Louis, 158 Mo. l. c. 659; Meddis v. Wilson, 175 Mo. l. c. 133.
If the nonsuit suffered by plaintiffs, at Independence, was in legal contemplation but the dismissal of their former suit, then it must necessarily follow that the circuit court of Jackson county, sitting at Independence, had no power or authority to enter the final judgment mentioned in favor of defendant and against - plaintiffs, as is contended for by counsel for respondent, for the simple reason that their suit, according to respondent’s own theory, was dismissed several days before the court undertook to .render the judgment mentioned, which was not done until after the motion to set aside the nonsuit was overruled, as shown by the record.
It is academic that a case must be pending in court before the court possesses the power to render judgment thereon; and in the former case between these parties, the only authority the court had, after the nonsuit was taken therein, was either to sustain the motion to set aside the dismissal or nonsuit, and
We are, therefore, of the opinion that the judgment rendered by the circuit court, at Independence, was not a final judgment upon the merits of the cause, but was . a judgment of involuntary nonsuit.
II. It is next insisted by counsel for respondent, that appellants, the plaintiffs in the former case, had not suffered a nonsuit as contemplated by sections 2868, as amended by the Act of 1905, and 4285, Revised Statutes 1899, until the order of the court overruling the motion to set .aside the nonsuit taken in that case had been disposed of on appeal; and quotes in support thereof the following language from the case of Wet-more v. Crouch, supra, p. 653: “Again, for the purpose of advancing the remedy, this court in Chouteau v. Rowse, 90 Mo. 191, held that it was not necessary to sue within one year after the judgment of nonsuit was rendered in the circuit court, but that if the second suit was commenced within one year after such judgment on plaintiff’s appeal was affirmed in this court, it was 'well enough. It was observed in that case, by way of subtle analysis to further argument, that the statute does not say within one year after a non-suit was taken or after a judgment for nonsuit was entered, but within one year after such nonsuit was suffered, and it was held that a party has not suffered a nonsuit until a judgment of nonsuit is entered to the enforcement of which no legal impediment exists, which fact could not exist as long as the judgment was held up by appeal.”
That case simply holds that where an appeal has been taken from the order or judgment of the court overruling a motion to set aside a nonsuit, and the judgment is affirmed, the plaintiff then has, under said
In this discussion of this question, Norton, J., in the first named case, in speaking for the court, said: “It is conceded that the present suit was not commenced within one year after the judgment of non-suit was rendered by the circuit court, but that it was commenced within one year after the said judgment on plaintiff’s appeal to this court was affirmed, on the 20th of April, 1874, the case being reported in 56 Mo. 67. It is affirmed on the part of defendant that, inasmuch as the present action was not begun within one year after the judgment of nonsuit was taken in the circuit court, and inasmuch as more than five years had elapsed from the time plaintiff’s right of action accrued and the institution of the suit, such
And in the next case, Brace, C. J., clearly stated the law in the following language: ‘ ‘ This statute applies as well to voluntary as to involuntary nonsuits (State ex rel. v. O’Gorman, 75 Mo. 370), and when an appeal will lie, as now, from an order granting a uew trial, which arrests a judgment after verdict, and such appeal is taken, the judgment of nonsuit is thereby superseded, the case removed to the Supreme Court, and only when the judgment is affirmed by that court is a nonsuit suffered within the meaning of this statute, and the plaintiff’s action having been commenced within a year after the affirmance of the judgment in
In Estes v. Pry, supra, Judge Marshall, on page 81, said: “The one year here allowed means one year after the judgment is entered for a nonsuit, in arrest, or for a reversal, and this is true whether such judgment is entered in the trial or appellate court. [Chouteau v. Rowse, 90 Mo. 191; Hewitt v. Steele, 136 Mo. 327.] So that this suit was begun within one year from the date on which the nonsuit was suffered, and hence is not barred by limitation.”
As to the case of Wetmore v. Crouch, supra, we set out what Judge Lamm; said therein, regarding the question under consideration, which need not he repeated here.
In the case of Húdson-Kimberly Publishing Co. v. Young, 90 Mo: App., supra, the judgment of nonsuit was not appealed from. On page 513, the court said: “An involuntary nonsuit is merely a dismissal of the plaintiff’s cause of action, when it is taken before the case is finally submitted to the jury, the court sitting as a jury, or the court.”
In the case of Meddis v. Wilson, 175 Mo. l. c. 132-133, no appeal was taken from the judgment ordering an involuntary nonsuit. The court says: ‘ ' The plaintiffs who 'suffered’ such nonsuit might have commenced an action within one year after such nonsuit was 'suffered.’ ”
Under the light of the foregoing adjudications, it cannot, it seems to us, be logically held that the statutes under consideration do not authorize the plaintiff, who suffered an involuntary nonsuit, not appealed from, to bring a new suit within one year from the date of the rendition of said judgment of nonsuit.
We, therefore, rule this insistence against respondent.
III. A question is raised and discussed as to whether or not section 2868 as amended by the Act of
The judgment is, therefore, reversed, and the cause remanded.