Alsop v. McCombs

253 F. 949, 165 C.C.A. 391, 1918 U.S. App. LEXIS 1622

• Court: Court of Appeals for the Eighth Circuit
• Decided: April 25, 1918
• Docket: No. 5024
• Status: Published

Opinion

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.”

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.