Alsop v. McCombs

STONE, Circuit Judge. Suit upon contract for damages. From a judgment upon a directed verdict at the close of plaintiff’s evidence a writ of error was taken. At the close of plaintiff’s evidence he moved the court for a voluntary nonsuit, which was denied. This was followed by a statement by the court that a verdict would be directed. Again plaintiff moved for nonsuit, which was denied. The sole error assigned is the refusal to grant the nonsuit. Under the “conformity statute” (R. S. § 914 [Comp. St. 1916, § 1537]), the practice of the state courts must govern. Section 1980, Revised Statutes of Missouri 1909, provides: "The plaintiff shall be allowed to dismiss his suit or lake a nonsuit at any time before the same is finally submitted to the jury, or to the court sitting as a jury, or to the court, and not afterward.” [950] This court, in Chicago, M. & St. P. Ry. Co. v. Metalstaff, 101 Fed. 769, 41 C. C. A. 669, after quoting the above statute and citing numerous Missouri cases, decided that the plaintiff might “take a nonsuit at any time before the jury has actually retired.” The judgment is reversed.