Hesse v. Missouri State Mutual Fire & Marine Insurance

Scott, Judge, delivered the opinion of the court. The question involved in this case is of some importance.. It is, at what time, under the present practice act, a' party may dismiss his petition when the trial has been submitted to the court. The practice act now in force is silfent'as to non-suits. Under the New York code, similar in many respects to our own, they seem to have no place. Law and equity being; blended, the term nonsuit would not perhaps have been appropriately applied to all dismissals of petitions indiscriminately.. It seems to be against the spirit of the'present system'of procedure to keep up a distinction between law and equity suits,.' and to hold that a suit which would' formerly have been on the-equity side of the court may be dismissed at any time upon'' 'the-payment of costs, whilst one that would have been on the common law side of the court, must be subject to the statutory regulations now in force in relation to nonsuits. The 33d section of the 4th article of the act concerning prac [96] tice at law, (R. C. 1846,) forbids any plaintiff from suffering a nonsuit, after the cause, upon a bearing of the parties, shall have been finally submitted to a jury, or to the court sitting to try the issue, for their decision. By blending the administration of law and equity, it is obvious that, if this provision is made to extend to all trials by the court, a class of cases will be included in its terms which was never contemplated, as the provision was only intended for trials at law under the old system of practice. All the elementary writeis on equity law tell us that, in chancery, a complainant may, at any time before a final decree, upon the payment of costs, dismiss his bill. (Adams on Equity, 664.) This rule has lately been modified in England by an order in chancery. At law, under the old system, when the matter to be tried was, by the pleadings narrowed down to a single issue, there was a propriety in refusing a plaintiff the liberty of taking a nonsuit after submitting his casebut, as matters of chancery jurisdiction were usually complicated, in which many facts were involved, the law, in its wisdom, permitted a plaintiff to dismiss his bill before a final decree, and to renew his suit, when by oversight or any other cause, he had failed to present it in the way it should have been. In this state of uncertainty, we have, thought that the 6th ¡and 7th sections of the 18th article of the present act regulating practice, which seem to draw a sort of random line between the former actions at law and suits in equity, should fur,nish a rule by which to distinguish the cases in which the provisions .of the statute, relative to nonsuits, should apply, and ¡those in which the rule in equity, as above stated, should ob-tain. The first of the sections referred to, describes the actions in which the trial of the issues shall be by the jury, and ¡the .next section that class of litigation, onee known as chancery suits., which, from their intricacy and the number of circumstances involved, it would be unsafe to submit for trial to .a jury, and therefore, are still left, as formerly, to be tried by :the.court, and being so left, the right of the plaintiff to dismiss [97] bis petition, and tbe power of the court to dismiss a petition without prejudice, would remain as they stood under the old system in equity proceedings. As this was a ease properly triable by a jury, the submission to the court did not wary the rule applicable to nonsuits. The statute prescribes that, after a cause shall have been finally submitted to a court for its decision, the plaintiff shall not be permitted to take a nonsuit. This eause was finally submitted to the court, and its decision made known before the party offered to take a nonsuit, and therefore it was properly refused. The court having found the fact of the assignment to Hart, the record of the Court of Common Pleas was conclusive between the parties. The finding of the court, in relation to the illegality of the set-off set up by the defendant, was entirely redundant and unnecessary, as a previous part of the finding showed that the matter was concluded by a former judgment. Judge Ryland concurring, the judgment will be affirmed.