Ivory v. Delore
Supreme Court of Missouri
Error to St. Louis Land Court. This was an action for partition. The commissioners appointed to make partition made their report to the court. The plaintiff moved the court to dismiss the suit at his costs ; which motion the court granted, and the plaintiff accordingly took a nonsuit. The defendants resisted the action of the court in permitting plaintiff to take a nonsuit.
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Error to St. Louis Land Court. This was an action for partition. The commissioners appointed to make partition made their report to the court. The plaintiff moved the court to dismiss the suit at his costs ; which motion the court granted, and the plaintiff accordingly took a nonsuit. The defendants resisted the action of the court in permitting plaintiff to take a nonsuit. I. Plaintiff could not, without the consent of the defendants, dismiss the cause after it had progressed so far. The defendants protested against the dismissal of the suit, and requested the court to go on and make…
1Opinion of the CourtRichardson, Judge
In a suit for partition there are two judgments, and as the last, which is given on the coming in of the report of commissioners, is the principal and the final judgment, the first, quod partitio fiat, is only interlocutory, upon which a writ of error will not lie ; and the reason given by Bacon for this is that before final judgment the plaintiff may be nonsuited. (Stephens v. Hume, 25 Mo. 349; Allnott on Part. 27; 4 Bac. Abr. 505.) And no doubt when this case was here be*507fore on another branch of it, the court overlooked the fact that a final judgment had not been rendered.
Under our statute,…
2Cases cited1 opinion
- Stephens v. HumeSupreme Court of Missouri · 1857
3Cited by5 opinions
- Camp Phosphate Co. v. AndersonSupreme Court of Florida · 1904
- Dangerfield v. CaldwellCourt of Appeals for the Fourth Circuit · 1907
- Koester v. KoesterMissouri Court of Appeals · 1976
- Buller v. LinzeeSupreme Court of Missouri · 1889
- Skallberg v. SkallbergNebraska Supreme Court · 1909