Turner v. Northcut

| Mo. | Jul 15, 1845

Scott, J.

delivered the opinion of the court.

Northcut and McCarty brought an action against Turner in a justice’s court, on an account for plank, lumber, &c. After a trial in the justice’s court, the cause was taken by appeal to the circuit court, where on a trial de novo, Turner admitted that he had received the articles charged against him, but maintained that they were delivered to him in satisfaction of a bond he held on McCarty, one of the plaintiff’s in this suit. To counteract this defence, the plaintiffs produced in evidence the record of a suit commenced by Turner against McCarty in a justice’s court, on a bond mentioned, from which it appeared that, in that suit a judgment had been rendered against Turner, from which he appealed to the circuit court, and after the appeal had been regularly taken, he voluntarily discontinued his action. The court permitted this evidence to goto the jury, and a verdict and judgment was rendered for the plaintiffs, from which Turner has taken this appeal.

The question involved in the cause is, whether a plaintiff who sues in a justice’s court, and has a judgment rendered against him, from which he appeals to the circuit court, and afterwards voluntarily discontinues his action or takes a non-suit, is barred by the judgment 'of non-suit or discontinuance, or whether he may sue again on his cause of action P

This is a question on which but little light can be thrown by reference to the learning, respecting the effect of appeals and writs of error in courts of equity and law. It is clear that a writ of error at the common law, or an appeal in the civil law, did not destroy, but merely suspended the effect of a judgment or decree. In investigating the point we can only be guided by the character of the court whose proceedings are involved, and the statute regulating the subject. No principle is clearer than that a judgment of a court, however limited its jurisdiction may be, is binding and conclusive, until it is regularly vacated or set aside. Unless the judgment of a justice is appealed from, it is as binding and conclusive as the judgment or decree of the highest court known to the law. But while an appeal or writ of error merely suspends the effect of a judgment of a court of record, our legislature has not seen proper so to limit the effect of an appeal from a justice’s court to the circuit court. The proceedings in a justice’s court sre summary, with little or no attention to forms, and they are held by officers who are not presumed to be skilled in the law. A justice is bound to enter the verdict of a jury, and give effect to it, whatever his opinion, may be of its injustice and oppression. On the trial of an appeal from a justice’s court in the circuit court, no regard is had to the evidence which was produced in the inferior court. Evidence not offered, or even purposely withheld in the inferior court, may be produced on the trial in the circuit court. The 8th section of the 8th article of the act regulating justice’s courts, enacts, “that upon the return of the justice being filed in the clerk’s office, the court shall be possessed of the cause and shall proceed to hear, try and determine the same anew, without regarding any error, defect or other imperfection in the proceedings of the justice. The proceedings of the justice are only looked into, in order to ascertain that the same cause is tried in the circuit court, that was tried in the justice’s. If it be said that it is unjust that a plaintiff should have the effect of a reversal, simply.by taking |an appeal, and then discontinuing his action, it may be answered that our law gives the plaintiff a similar advantage in all other courts. A plaintiff may institute- a suit against a defendant — there may be a full investigation of the controversy on the merits, and all may as well be assured as they can be of a moral certainty, that the defendant will obtain a verdict, and yet the plaintiff may take a non-suit, at any time before the cause is finally submitted to the jury, prevent a judgment in behalf of the defendant, and commence his action anew. So a plaintiff, seeing that a defendant is about to obtain a judgment against him, under a plea of set-off, may prevent it by taking a non-suit. When an appeal is taken by either party, its effect is not only to suspend, but to destroy the effect of a judgment of a justice ; it makes it as though no judgment had heen rendered. The cause is considered as still pending, no regard is had to thejjudgment of a justice, and the rights of the parties are the same as they would be in any other suit pending in the courts of record.

The plaintiff may at any time discontinue his action, or take a non-suit without prejudice to another action, and if the defendant should die and the cause of action did not survive, although he may have appealed, the suit would abate. I have always unders tood the law to be, that on the trial of an appeal from a justice’s court, the plaintiff might take a non-suit, and commence another action for the same cause.

What is the difference in principle between suffering a non-suit and discontinuing an action P Upon an examination I have found that the courts of North Carolina have maintained the doctrine contended for in this opinion, whilst the courts of Pennsylvania would seem to maintain a contrary one. But this is a question depending so much on the peculiar system of laws in each State, regulating justices’ courts, that the manner of its determination in them, must be an unsafe guide for the courts of this State, especially without the statutes on which the opinions are founded.

We do not consider that the record raises the question whether the joint action can be set off by the bond of one of the plaintiffs. On this question there can be no doubt.

The other judges concurring, the judgment below is reversed.