Howell v. Pitman

Edwards, Judge, delivered the opinion of the court; Howel brought an action of ejectment against Pitman! for a tract of land in St. Charles county. Pitman pleaded, the general issue. On the trial, a witness on the part of the plaintiff proved that he had surveyed the land in dispute; in conformity to an Order in writing from the surveyor general at St. Louis; which authority he returned to that office with his survey, Defendant’s counsel moved the court to exclude from the jury dll evidence, parol and written, in relation to the survey, unless a copy of that order from the surveyor general should be produced; and this motion was sustained by the court. After the exclusion of the copy of the survey, and the evidence in, relation thereio, the plaintiff excepted to the opinion of the court, and suffered a HOn-suit; and now brings his writ of error to reverse the decision of the circuit court; But one question arises on this state of the case, that is, will a writ of error lie on a judgment of By the first section of the act regulating practice in the supreme court, it is provided that “ writs of error any final judgment or decision of any circuit court, in all cases, are writs of right.” Has there been a final mentor decision of the circuit court in this case? non-suit, voluntarily suffered by the party himself, is not a final judgment or decision of the court, but is a mere act of the party himself, and must always be voluntary, that is,, by the plaintiff’s counsel submitting to the same, or not appearing; and in no case can it be adverse, or [248] without implied consent —3 Chit. Prac. 910—and therefore it will not form the basis of a writ of error. The correct practice now seems to be this: the party suffering a non-suit must move the court to set it aside, anc^ *n discussing this motion all the points involved in ^ie case be brought under the review of the court. If the motion to set aside the non-suit be overruled, then the party may take his bill of exceptions, reserving the points and the evidence, and may sue out his writ of error on the decision of the court in overruling the motion to set aside the non-suit.; The decision of the circuit court, by which this motion is overruled, has been considered a decision finally disposing of the 'cause; and, therefore, from this decision, the writ of error will lie—English v. Mullanphy, 1 Mo. Rep. 780; Collins v. Bowman, 2 Mo. Rep. 196; Johnson v. Strader & Thompson, 3 Mo. Rep. 359. Tho judgment of the circuit court ought, therefore, to be affirmed, and the other judges concurring, it is affirmed.