Huthsing v. Maus

Holmes, Judge, delivered the opinion of the court. This was a suit for work and labor done.by the plaintiff on section 20 of the 3d division of the Pacific railroad, in excavating, hauling and clearing, at certain prices and rates agreed on with the partnership firm of Saunders & Maus, subcontractors, in the year 1856. The plaintiff continued the work according to agreement until he was prevented from the further prosecution of it by reason of the failure of his employers to make payment for the same according to the contract; and he claimed a balance still due him of $1,329.50, for which he asked judgment. The answer of the defendants denied the truth of the facts as stated in the petition, but admitted a like agreement between themselves and Henry Huthsing and W. Shiffbauer as partners; and they alleged that all the work that was done had been paid for. There was a trial by jury, and a verdict was rendered for the plaintiff for $500. There was a motion for a new trial, and a bill of exceptions filed in which several questions are presented for decision : they will be taken up in their order. 1. And, first, it appears, that, at the August term of the court in 1863, the defendant Jacob P. Maus filed a petition for a change of venue, on the ground that the inhabitants of the county were prejudiced against him. This petition was sworn to by one Jacob H. Maus, as the agent of the defendant. The court refused to grant the petition. The statute concerning change of venue in civil cases evidently contemplates that the application shall be made by the party himself, and it expressly requires that he “ shall annex thereto an affidavit to the truth of the petition.” The act makes no provision for this oath being taken by an agent. The act concerning practice in criminal cases expressly provides that the affidavit may be made by an agent; and it may very well be that the Legislature saw good reason for making the application in civil cases rest on the personal knowledge and the conscience of the party himself. A change of venue is [108] not authorized unless all the provisions of the statute in relation to the application have been complied with. In Levin v. Dille (17 Mo. 64) the affidavit was made by an attorney, and it was held that the application was properly refused, as not being in compliance with the statute. We think there was no error in refusing a change of venue. 2. Another ground of exception was the admission of the deposition of James W. Way. It was admitted that the witness resided at a distance of more than forty miles from the place of trial; and though he had been in attendance for several days and until the day of trial, it appears that his absence was without collusion or the consent of the plaintiff. We think the deposition was rightfully admitted to be read. 3. Four instructions were given for the plaintiff, and several were given for the defendants, two only being refused. On a careful examination, we are of opinion that the instructions given for the plaintiff correctly state the law of the case and were well warranted by the evidence. The second instruction refused for the defendant was as follows : “ 2. The jury are further instructed to exclude from their consideration any evidence that tends to show plaintiff did work and labor for the defendants, unless they find the same was done under the special contract stated in plaintiff’s petition.” So far as any special contract is stated in the petition, the evidence offered by the plaintiff seems to have been pertinent to the issues actually made, and we have failed to discover any evidence tending to show any other or different contract than that in the petition contained. We do not see that the defendant was injured by the refusal of the instruction. The other instruction which was refused for the defendant was to the effect, that, if the plaintiff had abandoned the work without the fault of the defendant, he could not recover. There does not appear to have been any evidence in the case which could be considered as furnishing a foundation for such an instruction; on the contrary, all the evidence bearing upon the particular subject seems to have been di [109] rectly the other way.. We think this instruction, also, was very properly refused. 4. It further appears from the bill of exceptions, that after the jury had retired, and before they had made up their verdict, the plaintiff suggested the death of Saunders, one of the defendants, and dismissed his petition as to him; and thereupon the verdict was rendered against the other defendant only. The defendant insists that the plaintiff had no right to suffer a non-suit or dismissal after the cause had been submitted to the jury. The proper construction of the 48th section of article 10 of the Practice Act (R. C. 1855, p. 1269), which reads as follows — “No plaintiff shall suffer a non-suit or dismissal after the cause, upon a hearing of the parties, shall have been finally submitted to a jury, or to the court, for their decision” — has been the subject of discussion in this court in several cases. In the case of Hesse v. The Mo. State Mut. E. & M. Ins. Co. (21 Mo. 93), the cause had been tried before the court sitting as a jury, and the finding of the court had been amended, when the plaintiff asked for leave to take a non-suit, which was refused ; and this court held it was too late, after the final decision had been made known. In Lawrence v. Slireve (26 Mo. 492), it was determined that where a cause is taken under advisement by the court upon instructions to be considered, and no day is named for the announcement of the decision, the plaintiff is entitled to be informed of the decision upon the instructions, and, after that, to have an opportunity to take a non-suit before the final submission of the cause: and in the case of Hensly v. Peck (13 Mo. 587), a jury was recalled the next morning after they had retired, when the instructions were withdrawn and new instructions given; whereupon the plaintiff took a non-suit with leave, and it was decided that the court, “ in all this, had not acted indiscreetly or illegally.” Without undertaking to draw the limit with exact precision, it would seem to be reasonable that some latitude of discretion should be allowed. The jury may have retired, [110] and yet it may reasonably be considered that neither the case nor the jury had passed entirely beyond the control and discretion of the court, so that it must necessarily be said that a final submission had been made. In this case, the plaintiff did not take a non-suit; ho only dismissed as to one defendant, and that a party deceased. A judgment against Saunders, after his death had been suggested, would have been erroneous, (Wittenburgh v. Wittenburgh, 1 Mo. 161,) and would have been vacated even at a subsequent term. (Stickney v. Davis, 17 Pick. 169 ; Stacker v. Cooper Cir. Ct. 25 Mo. 401.) It would have been utterly useless to have taken a verdict on that state of the record, and we do not see that it was an illegal or improper exercise of the power of the court to allow this dismissal to be entered at the time,, it was done ; nor does it appear that any injustice was thereby done to the other defendant. The judgment will be affirmed; the other judges concurring.