Kansas City, Wyandotte & Northwestern Railroad v. Walker

The opinion of the court was delivered by Horton, C. J.: The Kansas City, Wyandotte & Northwestern Railroad Company commenced an action against A. D. Walker and H. Tucker for the specific performance of a contract to convey land for a right-of-way, and for the payment of certain sums of money. The answer contained a general denial, and also set up counterclaims and set-offs for the unlawful taking of land owned by the defendants. The [742] cause was regularly assigned for hearing on November 13> 1889. Owing to a mistake of plaintiff’s attorney as to the time of the trial, the plaintiff failed to appear. The cause was reached in its regular order for trial on November 13, and the defendants, in the absence of plaintiff and its attorneys, asked leave to withdraw and dismiss without prejudice to a future action the counterclaims and set-offs in their answer. The court granted the motion without prejudice, and thereupon the defendants announced to the court that they would waive a jury, and desired a trial of the cause upon its merits. The defendants then submitted the pleadings, and without evidence of any kind, excepting two certain deeds of conveyance for the premises in controversy, executed to one of the defendants, which were not read, but the substance thereof stated to the court by the defendants’ counsel, the court found the issues for the defendants, and entered judgment accordingly, with costs. On November 16, 1889, the plaintiff filed its motion for a new trial, alleging “irregularity in the proceedings of the court by which the plaintiff was prevented from having a fair trial,” and the other statutory grounds. On November 21, 1889, during the term of the court, the plaintiff also filed a motion to modify and correct the judgment so as to make the same appear as a dismissal without prejudice, at plaintiff’s costs. The first motion was overruled; and the second motion was also overruled, excepting that the court ordered that the judgment rendered against the plaintiff, and for the defendants, be corrected to show the actual facts. Section 397 of the civil code reads: “An action may be dismissed without prejudice to a future action by the court where the plaintiff fails to appear on the trial.” Statutes are construed in reference to the principles of the common law, if possible. Under the common law, the plaintiff took a nonsuit by absenting itself from court when its case was called for trial. (16 Am. & Eng. Encyc. of Law, 721-723; 2 Tidd’s Practice [4th Am. ed.], 761; Case v. Hannahs, 2 Kas. 490; Moore v. Toennisson, 28 id. 608, 610; Herring v. Poritz, [743] 6 Ill. App. 208, 211, 212; Nordmanser v. Hitchcock, 40 Mo. 179.) In 2 Thompson on Trials, § 2229, it is said: “ The failure of the plaintiff to appear when his case is called for trial is equivalent to the expression of an election on his part to become nonsuit. In such a case no judgment can be taken against him, but his action should be dismissed, or judgment of nonsuit entered.” There was in fact in this case no trial, either of the law or of the facts. The plaintiff, upon whom rested the burden of the issues, was not present to offer' any evidence, and the defendants were not called upon to offer any evidence to sustain the general denial. The general rule is, that a permission to a court is a command, if it relates to the rights of suitors. (Bish. St. Cr. [2d ed.], § 112.) “ May be dismissed,” in § 397 of the code, should be construed to read “ shall be dismissed.” As the plaintiff did not appear on the trial, the cause, when called, should have been dismissed at the costs of the plaintiff without prejudice to a future action, as the defendants withdrew their counterclaims and set-offs. There was such error in the proceedings, on account of the judgment being rendered in the absence of the plaintiff, that the district court should have sustained the motion for the new trial, or should have so corrected the judgment as to show a dismissal without prejudice. The judgment of the district court will be reversed. All the Justices concurring.