Butler v. Pierce
Missouri Court of Appeals
Appeal from Linn Circuit Court. — Now. John P. Butler, Judge. (1) Under the undisputed facts of this case, it was the duty of the circuit court to either affirm the judgment of the justice, or dismiss the appeal, as defendant should elect. R. S. 1899, sec. 4076; Wolff v. Coffin, 46 Mo. App. 190; Hammel v. Weis, 54 Mo. App. 14. (1) At common law a plaintiff as of right, at any time in the progress of the case, even after verdict was rendered, might take a non-suit.
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Appeal from Linn Circuit Court. — Now. John P. Butler, Judge. (1) Under the undisputed facts of this case, it was the duty of the circuit court to either affirm the judgment of the justice, or dismiss the appeal, as defendant should elect. R. S. 1899, sec. 4076; Wolff v. Coffin, 46 Mo. App. 190; Hammel v. Weis, 54 Mo. App. 14. (1) At common law a plaintiff as of right, at any time in the progress of the case, even after verdict was rendered, might take a non-suit. This rule of the common law has been modified by statute in possibly all of the states, so that it may now be stated generally…
1Opinion of the CourtJohnson, J.
— On a trial of this case before a justice of the peace, defendant recovered judgment. Several days thereafter and in proper time, plaintiff took an appeal to the circuit court, but failed to notify the defendant, and no appearance being entered at the first term of the latter court, the cause was continued. On the second day of the following term the court permitted plaintiff to take a voluntary nonsuit. The next day the defendant filed motions to set aside the judgment of non-suit and to affirm the judgment appealed from, upon the ground that as the nonsuit was entered without his knowledge…
2Cases cited5 opinions
- Holloman v. St. Louis, Iron Mountain & Southern Railway Co.Supreme Court of Missouri · 1887
- Wolff v. CoffinMissouri Court of Appeals · 1891
- Hammel v. WeisMissouri Court of Appeals · 1893
- Hathaway v. St. Louis, Kennett & Southern RailroadMissouri Court of Appeals · 1902
- Studer v. FederleMissouri Court of Appeals · 1894
3Cited by2 opinions
- Comstock v. Tegarden Packing Co.Missouri Court of Appeals · 1913
- Jones v. National Candy Co.Missouri Court of Appeals · 1915