Alsop v. McCombs

Eighth Circuit

Alsop v. McCombs

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

Court of Appeals for the Eighth Circuit·Decided April 25, 1918·No. No. 5024·Published·Cited by 4 cases

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.”

[950] 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.

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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.”

[950] 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.

Alsop v. McCombs, 253 F. 949, 165 C.C.A. 391, 1918 U.S. App. LEXIS 1622 (8th Cir. 1918).

Pincite

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Opinion

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