Cornell v. King

BLAND, P. J. (after stating the facts) .--A set-off or counterclaim filed in an action (except in a certain class of cases, of which this is not one) by section 4499, Revised Statutes 1899, is deemed in law as an independent action begun by defendant against the plaintiff, and the dismissal or discontinuance of plaintiff’s action does not affect the set-off or counterclaim, but the defendant may, notwithstanding the dismissal or discontinuance of the plaintiff’s cause of action, prosecute his set-off or counterclaim to a, final judgment, and in all respects he occupies the position of plaintiff as to such set-off or counterclaim. In Thompson on Trials, section 2229, it is stated: “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 nonsuited.” In Nordmanser v. Hitchcock, 40 Mo. l. c. 183, it is said : “If the plaintiff does not come into court and prosecute his suit, no judgment can be taken against him, and his action .should be dismissed, or judgment of non-suit rendered.” (This rule is now changed by section 4499, supra, as to a set-off or counterclaim filed by the defendant.) In Wright v. Salisbury, 46 Mo. l. c. 28, it is said: “The court does not sit to represent parties, but to hear their allegations and proofs; and if they fail to appear and present their demands, it can only dismiss them without adjudication.” [See also Clowser v. Noland, 72 Mo. App. 217.] [196] The court, in this case, notwithstanding the plaintiff failed to appear in person or by attorney to prosecute her demand, took up his side of the case, represented him in the taking of the evidence, found for him on his cause of action and rendered judgment in his favor. In the circumstances, the court was without jurisdiction to render any judgment in plaintiff’s favor. She should have been nonsuited or her cause of action dismissed. [Authorities, supra]. The judgment is therefore • reversed and the cause remanded. Norloni, J., concurs; Goode, J., dissents.