Poe v. Dominic

46 Mo. 113

• Court: Supreme Court of Missouri
• Decided: March 15, 1870
• Status: Published

Opinion

Bliss, Judge,

delivered the opinion of the court.

This cause was commenced in the Cape Girardeau Court of Common Pleas, and, bj change of venue, transferred to the Circuit Court of the same county. The order of transfer was made upon motion of one of the defendants, and opposed by the plaintiff, who afterwards appeared in the Circuit Court, and, claiming that the proceedings in making the change were irregular, moved to remand the case. The court overruling the motion, he suffered a voluntary non-suit, and, having moved to set it aside, appeals.

This is a mere voluntary non-suit, to which the plaintiff was not driven by any action of the court below, and the judgment is affirmed.

“It is only where the action of the court on the trial is such as to preclude the plaintiff from a recovery that it is proper to suffer a non-suit. In no other case will this court interfere, as has been decided again and again.” (Hageman v. Moreland, 33 Mo. 86; see also Layton v. Riney, id. 87; Schulter v. Bockwinkle, 19 Mo. 647; Dumey v. Schoeffler, 20 Mo. 323.)

The other judges concur.