Mumma v. Staudte

36 Mo. App. 695, 1889 Mo. App. LEXIS 321

• Court: Court of Appeals of Kansas
• Decided: May 20, 1889
• Status: Published

Opinion

Gill J.

— The controlling question in this case is : Will a judgment of dismissal by a justice of the peace, entered at the request of the plaintiff and after the trial, and while the justice has the case under advisement, operate as a bar to another suit between the same parties for the same cause of action ?

Upon the following adjudications in this state we answer the proposition in the negative: Schmidt v. Halle, 15 Mo. App. 36; Flesh v. Christopher, 11 Mo. App. 483; and Same v. Same, 9 Mo. App. 573. The cases cited by defendant’s counsel from the courts of New York are in direct conflict with the ruling in this state, and sustain the position of defendant’s counsel. Yet for the reasons expressed by the St. Louis court of appeals in Schmidt v. Halle, supra, we adopt its ruling, and hold the proceedings and judgment before Allen, J. P., no bar to the present action. In the matter of instructions no error was committed to the prejudice of the defendant. Judgment affirmed.

All concur.