Fink v. Bruihl

Bliss, Judge,

delivered the opinion of the court.

In this suit the defendant acknowledged' the indebtedness, but set up a set-off greater than the debt. After the evidence'was closed the plaintiff asked leave to dismiss his suit, or in effect offered to suffer a nonsuit; but the court refused to permit him to go out of court, and the cause was submitted to the jury, who gave a verdict for defendant. The only question presented is whether the plaintiff had a right, under the circumstances, to suffer a nonsuit. Of this there can be no question under our statute. Set-offs were unknown to the common law, but have been provided for by statute from an early day. In many of the States there is an express provision that when a set-off or counter-claim is filed the defendant shall have a right to proceed to a trial of his claim, although the plaintiff may have dismissed his action or failed to appear; and the decisions in those States cited by. defendant are not authority with us. Our statute is imperative, and has ever been so regarded. “The plaintiff shall be allowed to dismiss his suit or take a nonsuit at any time before the same is finally submitted to the jury,” etc. (Ch. 165, § 47.) A case is cited from Tennessee (Riley v. Carter, 3 Humph. 230 ), where the court held that, inasmuch as the statute authorized a judgment in favor of a defendant for any balance found to be due him, he became an actor, and his action should not be defeated by dismissing that of the plaintiff. This is a very good reason for the adoption of the statutory provision before referred *176 to, qualifying the plaintiff’s right to suffer a nonsuit; but until it is adopted I can not see how the express right of the plaintiff can be so qualified. In Cummings v. Prudence, 11 Mass. 206 , a judgment in favor of defendant for a claim duly presented as an offset, rendered after the plaintiff had leave to discontinue, was reversed, although the statute expressly authorized a recovery for a balance due defendant, “in the same manner as if he had brought his action therefor.” This may not be precisely like the case at bar, inasmuch as the plaintiff had leave to discontinue; but in Branham v. Brown’s Adm’x, 1 Bailey, S. C., 262, leave to discontinue had been refused the plaintiff upon the ground that the defendant was entitled to a verdict for the excess of her set-off over his claim. The appellate court held, however, that the set-off was a collateral matter which could not affect the plaintiff’s right to suffer a nonsuit.

This precise question has not been directly before our court, but the right to dismiss, notwithstanding a set-off, has been always recognized. It is especially so in Nordmanser v. Hitchcock, 40 Mo. 182 , and I have not learned that our statute has ever received any other construction.

The judgment of reversal by the District Court is affirmed.

The other judges concur.