269 Mo. 381 | Mo. | 1916
This is an original proceeding by mandamus,. whereby it is sought to compel respondent, as the judge of division 7 of the circuit court of the city of St. Louis, to reinstate a certain cause at one time pending in said court, and to grant an appeal therein, from an order sustaining a motion for a new trial.
The facts out of which this instant case grew run thus: At the December term, 1915, there was pending in division 7 of the circuit court of the city of St. Louis, in which division respondent sat as judge, a certain cause wherein Abraham Spivack and another were plaintiffs, and relators herein were defendants, and wherein the sum in dispute was $10,000. The above action coming on for trial before a jury,, a verdict was rendered in favor of defendants on January 28, 1916. (For brevity and clarity we will hereinafter refer to the parties in the original suit as “plaintiffs” and “defendants,” and to the parties in the instant proceeding as “relators” and “respondent,” respectively.) Within the allotted time thereafter, to-wit, on February 1, 1916, plaintiffs in said cause filed their motion for a new trial, which was taken under advisement, and carried over by the learned respondent to a day in the February term, 1916, to-wit, to March 6, 1916, on which latter date the respondent sustained the motion aforesaid and granted to plaintiffs a new trial, on the ground that the verdict of the jury was
The precise point here mooted seems to be one of first impression in this State, and to be likewise unique by its rarity in other jurisdictions. While we have a statute which upon a casual reading might seem to cover the case, we are led to suspect that it does not; since we observe that both relators and respondent quote and urge this statute as furnishing a fairly satisfying reason why plaintiffs did and why they
“The plaintiff shall be allowed to dismiss his suit or take a nonsuit at any time before the same is finally submitted to the jury, or to the court sitting as a jury, or to the court, and not afterward.” [Sec. 1980, R. S. 1909.]
We are of the opinion that the above section must be construed in the light, of the facts and circumstances existing, and must be modified if need be, by a consideration of other well-settled principles of law. Two of these principles we think settle this case beyond cavil; they are (a) that by our practice ancl by the terms of our statute (Sec. 2040, R. S. 1909), any party authorized, and caeteris paribus entitled to take an appeal, may take the same at any time during the term at which the judgment, or order complained of, was rendered; in short, he has the whole of the current term within which to appeal, and (b) if a party entitled otherwise to an appeal, be by construction of a statute prevented from the exercise of a right in such behalf given to aT others in similar cases, there arises by such construction a refusal of due process of law to him who thus is deprived of' his right. [State v. Guerringer, 295 Mo. l. c. 416.] In the latter case, apposite to the point last herein made, we said:
“For while the right of appeal is not essential to due process of law (Reetz v. Michigan, 188 U. S. l. c. 508), yet if an appeal be allowed to some persons and not to all persons similarly situated, such deprivation of the right to an appeal is equivalent to the denial of due process of law, for due process of law and the equal protection of the laws are secured only when cthe laws operate on all alike, and do not subject the individual to an arbitrary exercise of the powers of government.’ [Duncan v. Missouri, 152 U. S. l. c. 382.]”
In an early case upon a point measurably analogous, it was said by this court: “No nolle prosequi or dismissal of a party ought to be allowed when it will produce any derangement in the rights of the defendants, deprive them of a legal defense, or subject them to increased difficulties or liabilities.” [Browning v. Chrisman, 30 Mo. l. c. 357.]
It will be seen that the statute contains no specific authority for doing what was done here. While it permits the plaintiff to wholly dominate and manage his lawsuit, it yet contains nothing which will allow plain
We are cited by respondent to the case of Wood v. Nortman, 85 Mo. 298, as conferring authority for the procedure herein followed by the court nisi. While it is true that this Nortman case contains .a dictum which, if read without reference to the context, and without regard to. the facts held in judgment in that case, would furnish’ some color to respondent’s contention, it is not in point here because no question of the right to test by an appeal the correctness of the action of the trial court was involved, and “because [and this reason is written in the court’s opinion] it was understood by the court and the parties before judgment was rendered, that the plaintiff might have the right of entering a nonsuit.” [Wood v. Nortman, 85 Mo. l. c. 303.] Neither does the case of Lanyon v. Chesney, 209 Mo. 1, militate in any serious degree against the view we here take. There are likewise dicta in the latter case which, when read outside their context, seem to uphold the contention of respondent. The question there up for judgment went to the right of a plaintiff to dismiss an action (wherein defendant had filed a counterclaim), regardless of the consent of the counterclaimant. The case rode off upon the finding that the counterclaim had not been so timely filed as to prevent plaintiff from exercising his- otherwise plenary right of dismissal.
The case of Randalls v. Wilson, 24 Mo. 76, also afield’ from the facts there held in judgment, seems to lend color to respondent’s position. But that was a case wherein both of the plaintiffs (cast as herein upon the trial) were infants when the action was commenced by them. When judgment was rendered against them one of them was still an infant. The case rode off upon the theory that since the judgment was an entirety, and since one plaintiff was an infant when it was rendered, it was utterly and wholly void as fio both plaintiffs, and that it was the plain legal duty of the trial-court to set it aside, and that defendant therein was there
If it were or could be made absolutely certain that tbe action of the trial court in granting a new trial in the case out of which the instant proceeding grew, in no wise hurt relators, then there would be some authority in the Randalls case, supra, for respondent’s position. If we could hold out of hand from something which appears upon the record that respondent’s ac”on in setting aside the verdict was as a matter of law indisputably correct, then we could say that it was impossible for relators to have been prejudiced by the dismissal of the case. But that is not this case; we are holding that relators are entitled to. their appeal, so that the controverted matter of whether they were-hurt may be fully examined and determined by us. The principle involyed in this holding is that invoked in all jurisdictions. [14 Cyc. 306, and cases cited; 6 Ency. Pl. & Pr. 842; 9 R. C. L. 194.] And this general rule is thus stated by Cyc., supra:
“While a plaintiff may dismiss any claim where such dismissal will not prejudicially affect the interests of defendant, he will not be permitted to dismiss, to discontinue, or to take a nonsuit, when by so doing he will obtain an advantage and defendant will be prejudiced or oppressed, or deprived of any just defense.”
It follows that the 'alternative writ of mandamus heretofore issued herein should be made absolute. Let this be done.