Koger v. Hays

AdaMS, Judge, delivered the opinion of the court. In this case, the plaintiff, conceiving that one of the defenses, set up in the defendant’s answer, constituted no defense at all, moved the court to strike it out. The court overruled this motion, and plaintiffs excepted ; and the plaintiffs thereupon took a non-suit with leave fo move to set it aside, and did afterwards file a motion to set aside the non-suit; and the court overruled their motion and entered a final judgment of non-suit, from which the plain tiffs have appealed to this court. This case comes directly • within the principle decided by this court in Schulter’s Adm’r vs. Bockwinkle’s Adm’r, (19 Mo., 647,) where the court declared that “when parties voluntarily suffer non-suits, we do not interfere. If it were allowed to plaintiff’s to take non-suits, on any motion they might make and which the court might overrule, and bring the case here to test the correctness of the decision on the motion, this court would be filled with cases in all the different stages of progress; and every question ©f practice might be brought here to be settled before the merits of the case were reached.” (Dumey vs. Schoeffler, 20 Mo., 323; Louisiana & Middleton P. R. Co. vs. Mitchell, 20 Mo., 432; Kirby, vs. Bruns, 45 Mo., 234; Gill vs. Clark, 54 Mo., 415.) Judgment affirmed, the other judges concur; Judge Sherwood absent.