200 Mo. App. 477 | Mo. Ct. App. | 1918
— Plaintiff brought his action for divorce. A trial was had before the court at the February, 1917, term thereof, and at its conclusion the cause was submitted upon the pleadings, evidence and proof adduced, and the court took time to consider it. Thereafter, and during the same term, the court rendered this decree; namely:
“This cause having- been tried by the court on the 12th day of February, 1917, and having on said last-mentioned date been by the parties hereto submitted to the court, upon the pleadings and the evidence, . . ■. and the court being now fully advised in the premises, doth find that the plaintiff is not an innocent and injured party and is not entitled to the relief prayed for in his amended petition; wherefore it is ordered, adjudged and decreed by the court that the plaintiff’s bill herein be, and the same is, hereby dismissed*, at the cost of said plaintiff, for which let execution issue.”
In due time plaintiff filed a motion for new trial, alleging newly discovered evidence as well as other matters of alleged error. Plaintiff filed several affidavits in support of his allegation of newly discovered evidence, the defendant resisting the motion and also filing-affidavits.
It would appear that this motion was continued to the April term of the court. At that term the court, without any motion to that effect, modified its judgment by adding to it. after the judgment dismissing plaintiff’s bill, the words, “without prejudice,” and overruled the plaintiff’s motion for new trial. Defendant in due time filed her motion to set aside the above order. That motion was overruled, defendant excepting and duly appealing.
Section 1980, Revised Statutes 1909, expressly provides that plaintiff shall be allowed to dismiss his suit or take a non-suit 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.”
We can see no distinction between this change in the order, and an order for the purpose of allowing plaintiff to take a nonsuit. When the latter occurs' we held, in State ex rel. Wendling v. Arnold, Judge, 197 Mo. App. 1, 198 S. W. 292, that it was reversible error. So our Supreme Court has held in many cases. They are so fully set out and commented on in Long v. Long, 141 Mo. 352, 44 S. W. 341, as also in Lawyers’ Co-Operative Publishing Co. v. Gordon, 173 Mo. 139, 73 S. W. 155, that we do not think it necessary to repeat what is there said.
Our conclusion is that the amendment made by the learned trial court, by inserting in the decree the clause that the bill was dismissed “without prejudice,” was beyond the power of that court. The cause had been submitted on the pleadings and the evidence, taken under advisement by the court, and a final judgment rendered.
The cause is accordingly reversed and remanded, with directions to the circuit court to set aside its amended or modified order of April 16, 1917, amending its judgment of date February 19, 1917, and reinstating its original decree dismissing plaintiff’s case.
