Conn v. Ferree

Tories, Judge,

delivered the opinion of the court.

This action was in the nature of a bill in equity brought by the plaintiff to set aside and cancel a deed of trust, executed by the plaintiff, on the ground that its execution had been procured by fraud.

*18 Upon the trial, the court having rnled adversely to the plaintiff and excluded her evidence which was offered to sustain her petition, she-took a non-suit with leave to move to set the same aside.

Upon the taking of fhe non-suit by the plaintiff, the court entered the following judgment-: “It is therefore considered and adjudged by the court that defendant recover of plaintiff and William' C. Samuel, her surety, their costs in this behalf expended, and have execution therefor.”

It appears from an additional or supplemental bill of exceptions filed by the plaintiff, that several days after the rendition of this judgment for costs the plaintiff filed her motion to set aside the non-suit, which was afterwards taken up and heard by the court and b_y the court overruled. No judgment of any kind was rendered upon the overruling of this motion.

There is no final judgment rendered in this case from which an appeal or writ of error will lie. (Buggess vs. Cox, 48 Mo., 278 .)

The plaintiff is out of court by hpr voluntary act. Her suit was not dismissed by the court; but at the time judgment for costs was rendered, her suit was still in court, she still having the right to file her motion to set aside the non-suit taken. The motion was afterwards filed and overruled; but no judgment rendered against plaintiff other than the one previously rendered for costs. (Bowie vs. Kansas City, 51 Mo., 454 .)

It is also doubtful whether a non-suit with leave to set the same aside can be taken on a suit in equity so as to bring the case before this court to be reviewed. (Gill vs. Clark, 54 Mo., 415 .)

The writ of error in this case is dismissed;

the other judges concur.