*1 any to negligence therefore show petition, and failed act of employee, Whitted, charged part of the defendants as petition. the amended instruction defendants’ a demurrer given.
close It whole.evidence should been was erroneous- ly refused, and jury. the case was' erroneously submitted unnecessary
It is points to consider any of the other raised. is reversed. and Ada
Rufus McCormack B. McCormack, Respondents, Augusta Appellant. Armour Dunn, W. (2d) 933. Appeals. May 24, Court respondents.
Charles Miller for
Alpha N. Brown appellant.
CAMPBELL, C. This causewas the court November .tried of the trial At close court entered following order: day'this regularly coming
“Now on this person attorney appears person by agreement by attorney between A hereto. jury is waived in the trial of is submitted pleadings adduced, hear- *2 arguments all of the of respective counsel for their by the taken under parties, this cause is advisement.” 1936, during 11, On March term, entry March was made in the of court” cause “minute books as follows: “Cause hav- ing been and taken under heretofore heard adv. court now finds judg. v. costs.” deft. Pltf. for appeared parties day, before the court on the next
Counsel 12, March and the court said: ‘' court of own motion its sets aside the heretofore 1936, day March, the 11th of rendered the reason that mis- understanding arguments the submission of briefs and oral has attorneys, between the arisen and the court will set the matter for argument 20th, oral Friday, 1936, further and briefs for March at ” P. M. two 19, 1936, On March filed motion dismiss the day On same the following the court o. entered der: plaintiff by attorney
“Now, day on this and files dismissal having of this cause This herein. heretofore been set oral 2 20, 1936, for March arguments being and briefs at P. and same unable to be heard on court having account another case for hearing plaintiffs having today, filed a dismissal matter argument is over and oral set continued ” 1936, 24, March 10:30 A. M. until at April 1936, 27, On the court entered its records the follow- ing order:
“Now, day parties on this come respective hereto at- torneys and the orders that submission of cause be and naught hereby aside and for is set held and the court same further plaintiffs’ prejudice at dismisses without costs to which ac- excepts. tion defendant “Wherefore, Adjudged by It Is Ordered and that ’ hereby prejudice be and plaintiffs same dismissed without go and that defendant hence and have and recover and from expended herein incurred and plaintiffs her costs said have there- for execution.” timely filed “motion set order setting the submission and the cause.”
aside The motion was appealed. has Defendant denied. May 1, 1937,
The defendant on filed motion entitled “Motion setting aside and dismissing submission cause.” set May 9, was overruled 1937. The abstract record in day (defend- appellant form that on the “the narrative states same ant) affidavit for application filed her and decision of the court. . . .” The affidavit for recites “. . delay, . that this is not made but be- vexation cause the appellant aggrieved affiant believes and decision of the court herein.” April that the order of
the submission for reason provide the statute does not appeal may be taken from R. such order. [Missouri-Kansas-Texas Co., (2d) Myers 87 S. (Floral W. Hills, Inc., et al. v. Paris Garnishee), (2d) 455; Stix, Harriman & Baer Fuller S. W. 598.] The defendant claims that the dismissal was that the order April the motion to the order of special was “a judgment.” order after final The dismissal was not a final judgment; it was not “the determination of the in the action.” R. [Section *3 plaintiff forced to take an involuntary adverse may, he proper after appeal. motion has been overruled, take an No appeal voluntary lies for a dismissal or ordered such as was in present the case. v. Terminal R. ’n Louis, Ass of St. [Turr S. W. 908.]
In the ease of Riley, State ex rel. v. 118 W. court S. the con- legal sidered the effect of the action of the trial in case of court the v. Potter Bullivant court, et al. plaintiff The finding issues, certain appointed a referee to ascertain and the determine value improvements litigation. the land in involved the The ref- eree report, made the and the defendants in exceptions. the action filed exceptions While these an pending, were order was made the Potter, plaintiff, the at the dead, time of dismissal was a fact unknown to the court. The heirs of Potter filed motion to set aside the order of reinstate the cause. The mo- tion was granted overruled and the movants appeal. speak- an In ing right of the of appeal, the said: “In this state a motion judgment fact, a vacate for error of patent not for record, error of supported by dehors the rec- ord, place takes the nobis, of the common-law writ of error coram is in the of an independent judg- and direct attack the in ment the committing judgment the error. A upon such a motion is judgment, within itself a final appeal from which an will lie. even if question this, Bnt there was a of which think we none, yet judgment there is the of dismissal orig- and for in the inal a proceeding was overruling the order the motion to judgment vacate such was ‘special a least order after final judgment cause,’ permit appeal the so as to under” statute, the now section appeal
The plaintiff the was from case action the of the
court in refusing-to-reinstate the as to whether case. The the or could involved. appealed defendants could- not was not Lawyer’s Co-Operative Publishing Gordan,
In case of v. the Co. judgment 73 W. S. was for the defendant. The court the sus- plaintiff’s purpose tained the motion new of allow- trial for the trial the to dismiss the cause. The held that the purpose not a new court was authorized to award trial the stated. a appeal by from new awarding the defendant was the order appeal provided an order which an expressly from statute. present the appeal In the case defendant did from action not judgment. in setting judgment aside, filed, and no motion new trial case was then under provided in order set submission as order November “special a ting not nor submission was hence, appeal and, after final cause” no lies order When the from that submission. so, submission, provided had power court set it do circuit were not longer If the cause cause was no under submission. con then, course, power, under submission the court had with plaintiffs, judgment was favor sent of to dismiss the action. The therefore, may, defendant and therefrom. she order of claims she had overruling her to set aside submission and vacate motion performed motion functions of of dismissal. The an order new trial. Laundry motion for new trial. Service [Pence jurisdiction, this determine court cannot on Lacking *4 April 27 or was void. The whether the Sperry, C., appeal is concurs. dismissed. adopt- opinion Campbell, foregoing
PER C., CURIAM:—The be and it is dis- opinion ed of the court. should as the missed. Banking Pleasant Hill Com- Alexander, Appellant, A. pany Respondents. 106 S.W. (2d) 919. et al., Appeals. June Court of