148 Mo. App. 298 | Mo. Ct. App. | 1910
This is a suit for false imprisonment. It originated in the circuit court of St. Charles county and was removed on change of venue to the circuit court of Franklin county. The finding and judg
The matter in judgment arises on a plea in abatement to the effect that another suit on the same cause of action was then pending between the parties which in turn presents the question as to the essentials requisite to the dismissal and termination of a suit pending in a court of competent jurisdiction. In other words, the inquiry is as to what, if anything, besides the filing of -a memorandum to that effect by relator, is essential to operate the dismissal of a cause of action pending in court.
The material facts giving rise to the question are as follows: Relator instituted this action for false imprisonment against defendant Hines, the sheriff of St. Charles county, and the American Bonding Company, surety on his official bond. It is set forth in the petition that the defendant Hines, sheriff, etc., appeared before a justice of the peace and swore out a warrant charging relator with a breach of the peace and thereafter effected his arrest thereunder; that upon the arrest being made, relator offered immediately to go before a justice of the peace and execute a bond or recognizance for his appearance, as was his right under the statute, but defendant Hines arbitrarily refused his request and, notwithstanding his protestations, lodged him in the common jail of St. Charles county and there restrained him of his liberty for a considerable time; that the sheriff continued and persisted in his refusal to permit relator to go before a justice of the peace and execute bond for his appearance and relator was compelled to employ counsel before he was permitted to regain his liberty by giving bond, etc. It is averred, too, that on the day set for his trial, the prosecuting attorney, with the advice and consent of the defendant Hines, dismissed the charge against him and refused to prosecute him thereon.
The second count of the petition in that case, which is for false imprisonment, is, in all material respects, identical with the language in the petition in the cause now in judgment. Indeed, the second count of the petition in the Lincoln County Circuit Court proceeds and seeks a recovery against
When it appears that two suits are pending between the same parties on the same cause of action, the courts will abate the subsequent suit on the grounds that it is vexatious and oppressive. The law abhors a multiplicity of actions and favors the peace and repose of society instead. If there is identity of both parties and cause of action in two suits pending, the subsequent suit must always abate. There can be no doubt that the court properly abated the present suit between the same parties for the identical cause of action as that involved in the second count Of the petition in Lincoln county, unless it appears the count on the same cause of action had theretofore been dismissed and the suit as to that subject-matter terminated in the Lincoln County Circuit Court. [Warder v. Henry, 117 Mo. 530, 540, 541, 23
The relator relies upon the fact that he filed a memorándum, in open court, dismissing the second count of his petition in the circuit court of Lincoln county and says that this terminated that suit on the present cause of action to all intents and purposes. The record of the Lincoln County Circuit Court introduced in evidence touching the matter is as follows:
“State ex rel. Henry Ostmann, Plaintiff, v. Waldo P. Hines and American Bonding Company, Defendants. On Sheriff’s Bond.
“Now at this day comes the plaintiff herein, by his attorneys, and files his Memoranda of Dismissal of the second count of the petition in this cause.”
It is conceded that this entry relates to the identical cause of action relied upon in the prior suit between the same parties and that it was made some time before the hearing on the plea in abatement in the present suit but nothing more appears in the record before us. Indeed, this is all of the evidence relied upon to show hearing on the plea in abatement in the present suit, which is conceded to have been pending between the same parties on the same cause of action. It is argued by defendant that though it appears relator signified' Ms intention to dismiss the prior suit, the cause remained pending until the court ordered its dismissal..
Nothing appears to indicate that relator proceeded under this section of the statute. Besides failing to show that reasonable notice was given to the adverse party, the record indicates that instead of seeking to strike out or withdraw any part of this petition in the sense of the statute, plaintiff sought to dismiss the cause of action set forth in the second count thereof. Section 1980, Revised Statutes 1909, Ann. St. 1906, sec. 639, provides, “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 jury, or to the court, and not afterward.” This section authorizes the plaintiff, generally speaking, to dismiss his suit. However, even under this statute, the plaintiff may not dismiss in every case. There are a number of instances in which the rights of the adverse party may become so far fixed as to preclude the plaintiff from dismissal but that is unimportant here. As a general proposition, the plaintiff may dismiss his suit under this statute as therein indicated. [In re Estate of Howard, 128 Mo. App. 482, 107 S. W. 398.] But something more is required than the mere signification of an intention to that effect on the part of the plaintiff. A case once legally commenced in a court of competent jurisdiction continues until some affirmative action is shown in the
, It therefore appears that in order to operate the dismissal or discontinuance of a suit pending, there must be an order of the court to that effect to the end that it may appear the discretion involved has been exercised and a judgment given thereon. Of course, this order must appear on the proper records of the court. It is said that under the code procedure there can be no valid discontinuance or dismissal of a suit without an ;qrder of the court to that effect. [6 Ency. PI. and Pr., 868, 869, 870, 871, 872, 873.] Numerous cases might be cited in support of the proposition stated. See Allen v. Dodson, 39 Kan. 220; Carleton v. Darcy, 75 N. Y. 375; Bishop v. Bishop, 7 Robt. (N. Y.) 194; Trow
It appearing that the Circuit Court of Lincoln county entered no order dismissing the count on the same cause of action, the judgment of the trial court to the effect that the same was then pending in a prior suit between the same parties should be affirmed. It is so ordered.