9 Mo. 249 | Mo. | 1845
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 jurisdic
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,
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.