Boggess v. Cox

48 Mo. 278

• Court: Supreme Court of Missouri
• Decided: July 15, 1871
• Status: Published

Opinion

Wagner, Judge,

delivered the opinion of the court.

The District Court dismissed the writ of error in this case on the ground that, there was no final judgment rendered in the Circuit Court.

Upon the trial the plaintiffs offered a deed in evidence, and it being excluded by the court, they took a nonsuit, with leave to move to set the same aside; and upon a motion to set the nonsuit aside being overruled they excepted, wherefore the court gave judgment against them for costs, 'and this was the only judgment rendered in this cause.

It is well settled that a judgment for costs only is not a final judgment, and will not support an appeal or writ, of error. Nor is there any difference between a final judgment, rendered on a nonsuit and in any other case. Where a nonsuit is taken, in order to justify an appeal or writ of error the judgment should be formally set out, “ that it is by the court therefore considered and adjudged that the plaintiff take nothing by his writ, and that the defendant go thereof without day and recover of the plaintiff his costs,” etc.

The action of the District Court' in dismissing the writ must therefore be affirmed.

The other judges concur.