Chouteau v. Rowse

Norton, J. —

On the twenty-ninth of October, 1868, the respondents 'began suit against the appellant in the circuit court of the county- of St. Louis, to recover ten thousand dollars, alleged to have'been paid November 30, 1867, to appellant, as tax collector, by respondents, on account of their taxes, but not applied by appellant to such taxes. The latter answered denying the matters *194 alleged, and the cause being tried in said court, May 27, 1872, resulted in a non-suit of respondents, who, failing to get said non-suit set aside, appealed the cause to this court, when, on the twentieth of April, 1874, the said judgment of non-suit was affirmed.

Afterwards, June 22, 1874, the respondents again sued apj)ellant in the same court, on the same cause of action, and appellant answered, denying the matters alleged, and pleading the bar of the statute of five years limitation thereto. The respondents, to avoid the latter plea, replied that they instituted this present suit within one year after the former suit was terminated. The cause, upon these issues, was heard February 16, 18S8, and the said circuit court declared the law upon the foregoing facts to be, that the claim of respondents was barred by the statute of limitations, and thereupon respondents suffered a non-suit with leave, and failing to get the same set aside, appealed the cause to the St. Louis Court of Appeals, where the said judgment of non-suit was reversed, and in due time appellant, Rowse, appealed the cause to this court.

It is conceded that the present suit was not commenced within one year after thejudgment of non-suit was rendered by the circuit court, but that it was commenced within one year after the said judgment on plaintiff’s appeal to this court was affirmed, on-the twentieth of April, 1874, the case being reported in 56 Mo. 67 . It is affirmed on the part of defendant that, inasmuch as the present action was not begun within one year after the judgment of non-suit was taken in the circuit court, and inasmuch as more than five years had elapsed from the time plaintiffs’ right of action accrued and the institution of the suit, that such right is not saved by section 3239, Revised Statutes, but is forever barred, which section is as follows: “If any action shall have been commenced within the times respectively prescribed in this chapter, and the plaintiff therein suffer a *195 non-suit, or after a verdict for Mm the judgment be arrested, or after a judgment for him the same be reversed on appeal or error, such plaintiff may commence a new action from time to time, within one year after such non-suit suffered, or such judgment arrested or reversed,” .etc.

This proposition is denied by plaintiffs, and they affirm that the action having been brought within one year ■after the rendition of the judgment by this court affirming the judgment of the circuit court, is not barred according to the true intent, meaning, and spirit of said . section, but is thereby saved. Counsel for defendant, in an argument more ingenious than sound, insists that ‘ ‘ ita lex scripta est,” and that the statute should be literally and strictly construed, without regard to that ■other maxim, “ que haeret in liter a, haeret in corticeP In so far as the act in question has been construed by this court, it has been literally construed with a view to accomplish the purpose of its enactment. Shaw v. Pershing, 57 Mo. 417 ; Briant v. Fudge, 63 Mo. 489 ; Wood v. Nortman, 85 Mo. 298 .

It will be observed that the statute does not in terms provide that the suit shall be brought within one year after non-suit is taken or judgment of non-suit entered, but within one year after such non-suit is suffered. When, in contemplation of this statute, may it be said that a party has suffered a non-suit ? I think it is when a judgment of non-suit is entered, to the enforcement of which no legal impediment exists. Non-suits are either voluntary or involuntary, and it is held in the case of Shaw v. Pershing, supra, that both are included in, and referred to by, the act. When a voluntary non-suit is taken, the plaintiff abandons his suit and it is ended ; and we have held that from the judgment entered upon it, no appeal will lie, and in such case the judgment is operative and enforceable, and the party thus suffering the non-suit must, to be protected by the statute, bring *196 his action within one year after the judgment is rendered.

But not so in the case of an involuntary non-suit, which the plaintiff, by some adverse ruling of the court, is driven or compelled to take, with leave to move to set the same aside with a view not to abandon the prosecution of the suit, but to further prosecute it by appeal, to test the correctness of such ruling. Such appeal, when taken, removes the cause from the circuit to the appellate court, and, when bond is given, as in this case, the judgment of non-suit is superseded, and can only become operative and enforceable in the event of its being affirmed by the appellate court, and it is only when so affirmed that a plaintiff, in contemplation of this statute, can be said to suffer a non-suit. If the legislative intent was, as contended for by counsel, that intent could, and doubtless would, have been unmistakably expressed by making the section read, if any action shall have been commenced within the times respectively prescribed in this chapter, and a judgment of non-suit is rendered, either upon a voluntary or involuntary non-suit, the plaintiff may commence a new action within one year after the rendition of such judgment.

The judgment of the St. Louis Court of Appeals, reversing the judgment of the circuit court, is hereby affirmed, with the concurrence of the other judges.