Stauffer v. Stauffer

1. DIVORCE: Judgment Dismissing Petition: Power of Court 'to Modify: Nonsuit. In view of the provisions of section 1980, Revised Statutes 1909, the action of the trial court in modifying its order and judgment in a divorce case, dismissing plaintiffs petition, by entering in it that plaintiff’s petition was dismissed “without prejudice,” was error; and this whether with or without a motion to so do. 2. -: -: -: -. Such, change in the judgment or decree in the case was tantamount to allowing a nonsuit after submission and was beyond the power of the court.

Appeal from the Circuit Court of the City of St. Louis. —Hon. Thos. G. Hennings, Judge. (1) The plaintiff shall he allowed to dismiss his suit or take 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 afterwards. B. S. 1909, sec. I960; Beed y. Beed, 39 Mo. App. 473; Sav,oni v. Brashear, 46 Mo. 345; Lawyers’ Co-Op. Pub. Co. v. Cordon, 173 Mo. 139. (2) An action for divorce in Missouri is purely statutory, and there is no statute authorizing a dismissal by plaintiff after a final judgment. In re Kinsolving, 135 Mo. App. 640; Sharpe v. Sharpe, 134 Mo. App. 278; State v. Crimm, 239 Mo. 340. (3) The finding and judgment of the court are inconsistent. The court having found “that the plaintiff is not an innocent and injured party and is not entitled to the relief prayed for in his amended petition,” it was error and improper for the court to modify the decree- permitting a dismissal “without prejudice.” (4) Appellant is aggrieved by. the action of the circuit court. If the judgment as modified is erroneous, appellant’s remedy is by appeal to have the judgment reviewed. It is not subject to a successful attack collaterally upon a mere showing that the words “without prejudice” should have been omitted. Long v. Long, 141 Mo. 352, 370, point 6. (1) There was no non-suit taken in this case, and what was done was not in the nature of a non-suit. The cases cited refer to an attempt to take a non-suit after trial, after the whole ease had been finally submitted. The Eeed case is not similar to the case here, where a motion for a new trial was filed; a multitude of affidavits were filed, disclosing newly discovered evidence, before a final finding dismissing plaintiff’s petition without prejudice, was entered. The cases are not on the same footing. The appellant was therefore not aggrieved by the finding of the lower court. There were no judgments against her and she was not aggrieved and therefore had no right to appeal. Only parties aggrieved have the right of appeal. E. S. 1909, sec. 2038. (2) A judgment is not a finality until all motions are disposed of. “A motion for a new trial or a motion to set aside a judgment goes over to the next term of court without any special order of continuance. The court has the power at said next term to take up and consider the same.” Harkness v. Jarvis, 182 Mo. 231. “A motion to modify may he determined at a subsequent term of court.” Brieding v. Nelson, 142 Mo. App. 685. “Until the motion is disposed of, a judgment is not a finality.” Childs v. Eailway, 117 Mo. 414; Memphis v. Brown, 94 U. S. 715; Amy v. Water-town, 130 U. 8. 301; Baker v. Baker, 51 Wis. 538; Wiñdlett v. Hamilton, 52 Ill. 180. “The trial court may, in the exercise of a sound discretion, set aside a verdict on its own motion. Schuate v. Transfer Co.. 108 Mo. App. 25; Parker v.-Britton, 133 Mo. App. 270; Hurle v. Kennally, 186 Mo. 225. The jurisdiction of the court being held until all motions pending therein were finally disposed of. Beck v. Wright, 135 Mo. App. 536; State v. French, 118 Mo. App. 15; Cramer v. Barmon, 193 Mo. 327. (3) It is in the discretion of a court of equity who has all the facts before him, including motion for a new trial on the ground of newly discovered evidence, to modify his orders and dismiss plaintiff’s petition without prejudice. “And such dismissal is no decision of the controversy on its merits.” Newberry v. Buffin, 102 Va: 73. (4) “It is the constant practice of the court to insert in the decree of dismissal of such a bill that it shall be without prejudice.” Daniells Pleading and Practice, page 1244. Henry Reynolds, administrator of James Reynolds v. John B. Hennessy, 17 R. I. 169, 175. Held, that neither the discontinuance nor the dismissal “without prejudice” precluded the plaintiff .from a new action. “A dismissal ‘without prejudice’ leaves the parties as if no action had been instituted.”