author: WOODSON, J.

text:
    J. A. MASON et al., Appellants, v. KANSAS CITY BELT RAILWAY COMPANY.
    Division One,
    March 1, 1910.
    1. NONSUIT: Renewal of Action: Final Judgment. Plaintiff has the right to bring a new suit upon the same cause of action within one year after the court’ sustained defendant’s demurrer to the evidence and he took an involuntary nonsuit with .leave, and the fact that plaintiff did at such term file his motion to set aside the nonsuit, and the court overruled the same and thereupon rendered judgment for defendant and against plaintiff, does not alter plaintiff’s right to bring another suit on the same cause of action. That judgment was not a final judgment upon the merits, nor res adjudicata of the cause of action, for the reason the count had no authority to render it after the nonsuit suffered, which, in legal effect, was a dismissal.
    2. -: -: — : -: Appeal. An appeal from the order of the court overruling the .motion to set aside the involuntary nonsuit is not necessary to authorize plaintiff to bring a new suit upon the same cause of action. He can renew the suit within one year without an appeal; and if he appeal and execute an appeal bond, he may bring the suit again within one year after the cause is determined in the appellate court.
    Appeal from Jackson Circuit Court. — Hon. Jackson L. Smith, Special Judge.
    Reversed and remanded.

      Jamison, Elliott & Ostergard for appellants.
    (1) Under the code practice of this State, an involuntary nonsuit is merely a dismissal of plaintiffs’ cause of action, where it is taken before the cause is finally submitted to the jury, as was done in plaintiffs’ case at Independence, based on the same cause of action as the case at bar. Waterworks Co. v. School Disk, 23 Mo. App. 235; West v. McMullin, 112 Mo. 409; State v. Railroad, 149 Mo. 109’; Pub. Co. v. Young, 90 Mo. App. 513; Weithaupt v. St. Louis, 158 Mo. 659; Meddis v. Wilson, 175 Mo. 133. (2) It is not the rule, that the involuntary nonsuit is not finally taken until plaintiff has appealed from the decision of the trial court overruling plaintiff’s motion to set aside the involuntary nonsuit. It is wholly at the discretion of the plaintiff whether he will appeal from the decision of the lower court. If he does appeal, when bond is given, the judgment of dismissal on the involuntary nonsuit is superseded and suspended until the matter is determined by the appellate court, but if there is no appeal, there is no suspension of the judgment of dismissal, and it is entered at once. Chouteau v. Rowse, 90 Mo. 195; Hewitt v. Steele, 136 Mo. 334; Estes v. Fry, 166 Mo. 81; Wetmore v. Crouch, 188 Mo. 653; Meddis v. Wilson, 175 Mo. 132.

      Lathrop, Morroiv, Fox & Moore and Geo. J. Mersereau for respondent.
    Section 2868; R. S. 1889, as amended by Laws 1905, p. 138, providing for a saving in case of nonsuit, is not applicable to a case of this kind. The plaintiffs in this case did not suffer a nonsuit. It was a record final judgment, renderéd by the court in favor of the defendant and against the plaintiffs, and not until that judgment.of the court has been finally disposed of on appeal can the plaintiffs avail themselves of the saving clause of section 2868. The judgment b,etween the parties being final, its remedy was by appeal. Plaintiffs had not suffered a nonsuit as contemplated by the statute until this judgment of the court had been disposed of by appeal. Wetmore v. Crouch, 188 Mo. 643. The proceeding which resulted in the judgment in the Independence suit was the result of a trial of the plaintiffs’ case and the judgment was as final as though a verdict had been rendered and the judgment of the court upon the verdict. The plaintiffs’ rights in the case are clearly pointed out by the statute governing appeals. R. S. 1899, sec. 806; Coatney v. Railroad, 151 Mo. 35; State ex rel. v. Railroad, 149' Mo. 104. Our position is1 simply this, that the judgment of the court at Independence between these same parties is final unless reversed on appeal; that no new suit can be. brought until such appeal is taken and an actual affirmance made by the Supreme Court.
   WOODSON, J.

Plaintiffs brought this suit in the circuit court of Jackson county, Missouri, for the recovery of damages sustained by them through the alleged negligence of the defendant in causing the death of their son, at Kansas City, Kansas.

The petition in this case was filed August 4, 1906, which stated a good cause of action against the defendant; but as no point is made in that regard, it will receive no- further consideration.

The facts are not disputed, and are stated by counsel for respondent, substantially, as follows:

A former suit was- instituted by plaintiffs to recover damages on account of their son’s death, in the Independence division of the circuit court of Jackson county, Missouri. The action came on for trial at the June term, 1906, of said court, at Independence, and the following proceedings were had: the trial was begun, and plaintiffs introduced all of their testimony, and at the end of plaintiffs’ case, they were forced to take a nonsuit with leave to move to set -the same aside; and afterwards, during the said June term of the Independence court, the plaintiffs duly moved the court to set aside said nonsuit and at said term the court denied said .motion, and thereupon rendered judgment in said ■action in favor of defendant, against plaintiffs. No appeal was taken and no further steps whatever were taken in the cas.e at Independence, but plaintiffs filed this, their second action, in the Kansas City division of the same court on August 4, 1906, within one year from the date of the nonsuit. Following the bringing of this second suit, at Kansas City, the defendant in dne time filed its motion to dismiss the canse for the reason that the judgment in the Independence division was res adjudicaba as between the parties to the second cause. This motion in due time was taken up and considered by the court upon an agreed statement of facts, a portion of which was as follows:

“That on the trial of the issues between the parties hereto, based on the same cause of action, at the June term, 1906, of this court, at Independence, Jackson county, Missouri, plaintiffs took a nonsuit, with leave to move to set the same aside; that at said term, said plaintiffs duly moved the court to set aside said nonsuit, and that at said term said court denied said motion, and thereupon rendered judgment in said action in favor of defendant, against plaintiffs, which judgment was not appealed from by plaintiffs, and that at the time of the filing of the petition in this cause of action, against which this motion to dismiss is directed, the said June term, 1906, of this court, at Independence, Jackson county, Missouri, had duly ended.”

And upon these facts the court sustained the defendant’s motion to dismiss this cause, to which action of the court plaintiffs duly excepted, and from this ruling and order of court the plaintiffs in due time appealed to this court.

I. The real question presented by this record for determibation is, was the action of the trial court in sustaining respondent’s motion to dismiss this suit legal and proper? The correct answer to that question, however, depends upon the proper determination of two or three legal propositions.

The record discloses the fact that plaintiffs brought against defendant a prior suit, setting up the same cause of action that is stated in the petition filed herein. At the June term, 1906, of the circuit court, sitting at Independence, said cause was called for trial, and the following proceedings were then and there had, namely: the plaintiffs introduced their evidence, and at the close thereof, the defendant asked an instruction in the nature of a demurrer to the evidence, which was by the court given. Thereupon, the plaintiffs took a nonsuit with leave to move to set the same aside. In due time and in proper form plaintiffs filed their motion to set aside the nonsuit which they were forced to take on account of the action of the court in giving said instruction, and also asked for a new trial. This motion was, by the court, overruled, and, thereupon, a judgment of nonsuit was entered against the plaintiffs. No appeal was taken by them from that judgment, but instead thereof, as before stated, they instituted this suit upon the same cause of action in the circuit court of Kansas City.

Counsel for defendant contend, by their motion to dismiss this action, that the foregoing facts are res adjudicatei, and constitute a complete bar to appellants’ right to a recovery herein.

In support of this contention, counsel insist that the plaintiffs in this case did not suffer a nonsuit to go against them in the former suit, but that there was a final judgment rendered by the court in favor of the defendant, and against the plaintiffs, and that they having failed to appeal from that judgment-, it became res adjudicaba, as before stated; and for that reason neither section 2868, as amended by the Act of 1905 (Laws 1905, p. 138), por section 4285, Revised Statutes 1899, is applicable to this case, and are only availing where a nonsuit is suffered.

In support of that insistence, counsel relies upon the case of Wetmcrre v. Crouch, 188 Mo. 653. The statute the court there had under consideration was section 4285, before mentioned, contained in article 2 of chapter 48, entitled “Limitations of Actions.” That section reads as follows:

“If an action shall have been commenced within the times respectively prescribed in this chapter, and the plaintiff therein suffer a nonsuit, or, after a verdict for him, the judgment be arrested, or after a judgment for him, the same be reversed on appeal or error, such plaintiff may commence a new action from time to time, within one year after such nonsuit suffered or such judgment arrested or reversed; and if the cause of action survive or descend to his heirs, or survive to his executors or administrators, they may, in like manner, commence a new action within the time herein allowed to such plaintiff, or, if no executor or administrator be qualified, then within one year after letters testamentary or of administration shall have been granted to him.”

In construing this statute, this court, speaking through Judge Lamm, in the case before cited, on page 652, said: “A broad view of this section — a view that takes in as well the remedy to be advanced as the mischief to be retarded and that does not deal in mere ‘mint and anise and cummin,’ but goes to the weightier matter of the law — shows that it was in the legislative mind that a litigant should have a day in court — a trial on the merits of his cause. If the proceedings fell short of that, if the judgment was arrested, or if for plaintiff and reversed on error or appeal, or if some interlocutory matter Supervened and thwarted a trial on the merits, then the prescribed period of the Statute of Limitations, ex gratia, should be extended for one year as atonement for the miscarriage of justice. It is apropos to the subject to note that the frosty attitude of courts towards statutes of limitation is attested by the earlier decisions, but all judicial frigidity has dissolved under the benignant sunlight of modern apprehension of the salutary principles underlying such laws and the experiences of commercial peoples. As said by Wood (Wood on Lim. [3 Ed.], sec. 4): ‘These statutes are declared to be “among the most beneficial to he found in our books.” “They rest upon sound policy, and tend to the peace and welfare of society;” and are so construed as to effectuate the intention of the Legislature, although in individual cases they may produce hardship. But if parties will not settle their business matters within reasonable periods before human testimony is lost and human memory fails, on pain of losing the right to a remedy thereon, not the law, but the party, is responsible for the hardship entailed. ’ But in applying this wholesome rule of construction, it will appear that all the provisions of our Statute of Limitations should be construed together and -thus a liberal construction be given to effectuate the purposes of section 4285, as a constituent part of the legislative utterance, as well as to effectuate the purposes of the other provisions of the statute. In this spirit of libérality it was early held that the section in hand applies as well to voluntary as to involuntary nonsuits. [Shaw v. Pershing, 57 Mo. l. c. 422; Briant v. Fudge, 63 Mo. l. c. 492-3; Hewitt v. Steele, 136 Mo. l. c. 333.] This view has not been entertained in some jurisdictions. For example, in Illinois, in Boyce v. Snow, 187 Ill. 181, it was held that a statute, substantially the same as ours, referred alone to involuntary nonsuits, and it must be admitted that by including voluntary nonsuits within the scope of the statute it is put within the easy power of a plaintiff, sua sponte, to harass a* defendant with vexatious litigation, and this point Was urged by counsel in the Shaw case, supra. The language of our statute is, ‘Suffer a nonsuit,/ A close gloss of that phrase might very well have resulted in a holding that, by the' use of the word ‘suffer,’ t,he idea of being subjected to a controlling force is suggested, and that nothing but an involuntary nonsuit would meet the spirit of the law, but this court, as evidence of its blandness in advancing the remedy sought, coiistrued the statute as including both kinds of nonsuits, voluntary as well as involuntary, and has consistently maintained that position. Again for the purpose of advancing the remedy, this court in Chouteau v. Rowse, 90 Mo. 191, held that it was not necessary to sue within one year after the judgment of nonsuit was rendered in the circuit court, but that if the second suit was, commenced within one year after such judgment on plaintiff’s appeal was affirmed in this court, it was well enough. It was observed in that case, by way of subtle analysis to further the argument, that the statute does not say within one year after a nonsuit was taken or after a judgment for nonsuit was entered, but within one year after such nonsuit was suffered, and it was held that a party has hot suffered a nonsuit until a judgment of nonsuit is entered to the enforcement of which no legal impediment exists, which fact could not exist as long as the judgment “was held up by appeal. To the same effect is Hewitt v. Steele, 136 Mo. l. c. 334. Coming to a closer view of the issue, and still keeping in mind the liberal' tendency of this court in construing this law, it has practically been held that the word ‘nonsuit’ in the section involved means any judgment of discontinuance or dismissal whereby the merits are left untouched, thus discarding all technical niceties in the gloss of the word. For instance, in Meddis v. Wilson, 175 Mo. 126, a suit whs disposed of by the following entry: ‘This cause coming on to be heard and it appearing t’o the satisfaction of the court that the plaintiffs herein do not appear to prosecute in this cause, it is thereupon ordered that this cause be dismissed for want of prosecution.” It was held that such judgment of dismissal was a non-suit within the meaning of section 4285, supra. In Weber v. Schergens, 28 Mo. App. 587, a suit was brought on a taxbill issued in 1869, which having been reversed in 1875 (59 Mo. 389) stood in the circuit court for trial de novo until the year 1877, ‘when the plaintiff voluntarily dismissed it.’ Judge Thompson, speaking for that court, held that a subsequent suit on an amended taxbill was barred because not commenced within one year after the dismissal. (P. 593.) Persuasive authority exists else where tending to the same end. For example, in Herring v. Poritz, 6 Ill. App. Ct. (Bradwell) 208, the record showed that a cause was called for trial and defendants t were present by their attorneys, but that plaintiff failed to appear, either by person or attorney, and being three times called his default was entered and on motion of defendants’ attorneys the suit was ‘dismissed’ and judgment was against plaintiff for costs. The question presented was whether under the Illinois statute, which provides that if the time limit for bringing such action shall expire during the pendency of a suit, in which plaintiff be ‘nonsuited,’ he may commence a new action within one year and not after, such entry of dismissal was an involuntary nonsuit. Following a scholarly consideration of the meaning of the word ‘nonsuit,’ wherein Bouvier’s Law Dictionary, Webster’s Dictionary and Blackstone were explored for light, the court arrived at the conclusion that a judgment dismissing a cause under such circumstances brought the plaintiff within the fair intendment of the law. In Bank v. Magness, 11 Ark. 343, it was contended that a statute providing that ‘when a suit shall be commenced and the plaintiff suffer a nonsuit he may renew his action within twelve months from the time of such nonsuit, ’ was not met by a judgment of dismissal. The court held that there was no substantial difference between a judgment of nonsuit and a judgment of dismissal, and that the effect of both is the same. To the same effect is Baldwin v. Davidson, 139 Mo. l. c. 126. And in Louisiana, Belden v. Butchers Union, etc., Co., 38 La. Ann. 391, a case was dismissed because of a failure to furnish a bond for costs, on motion of defendant’s counsel, as we infer was the case at bar. It was held by that court that such dismissal did not constitute a voluntary abandonment of the suit as contemplated by a statute suspending prescription during the pendency of suit. And in Haldeman v. United States, 91 U. S. '584, it was held that the entry of a judgment ‘that the suit is not prosecuted and be dismissed’ is nothing more than the record of a nonsuit. Examples of this character might be multiplied., but let the foregoing suffice for our purpose, which is to show that a judgment of non-suit and a judgment of dismissal'serve the same purpose, have the same legal effect and arrive at the same end, and hence should be treated alike and allowed the same office in the every-day administration of the law. Under modern practice the court, nisi, could have entered a nonsuit in terms or a judgment of dismissal, and this in spite of section 1543, Revised Statutes 1899, which is merely directory and was not intended to schedule all the court’s power in the form of discontinuance to be employed in such instance. That the form used happened to be that of dismissal ought not to have the drastic result of stripping the plaintiff by one stroke of t-te pen of the benefits of section 4285, in view of our conclusion that an entry of dismissal and an entry of nonsuit are equivalent in law and practice.”

If we correctly comprehend the position taken by counsel for defendant, they do not contend that said statute as above construed by this court is not applicable- to a case where simply a nonsuit is suffered by plaintiff, but they do insist that in the former case there was not only a nonsuit suffered by plaintiffs, but that the record also shows that a final judgment was rendered against them in that suit, and in favor of the defendant therein, which was never appealed from, but is still in full force and effect. This contention of respondent is based upon the following language, contained in the bill of exceptions filed herein (which, however, does not purport to be a copy of the judgment but only a statement of its legal effect): “That on the trial of the issues between the parties hereto, based on the same cause of action, at the Juñe term, .1906, of this court, at Independence, Jackson county, Missouri, plaintiffs took a nonsuit, with leave to move to set the same aside; that at said term, said plaintiffs duly moved the court to set aside said non-suit, and that at said term, said court denied said motion, and thereupon rendered judgment in said action in favor of defendant, against plaintiffs^ which judgment was not appealed from by plaintiffs, and that at the time of the filing of the petition in this cause of action, against which this motion to dismiss is directed, the said June term, 1906', of this court, at Independence, Jackson county, Missouri, had duly-ended.”

In our opinion, counsel misconstrue the meaning of the language quoted. While it is true it states that the court rendered judgment “in favor of defendant, agaiinst plaintiffs,” yet that language must be read in the light of and in connection with that which precedes it, which states that “plaintiffs took a nonsuit with leave to move to set the same aside.,” etc. So, if we read the two clauses last quoted together, then clearly the meaning thereof is that the judgment mentioned was a judgment of nonsuit, and not a final judgment upon the merits, as contended for by counsel for respondent. But suppose we are in error in our construction of the language used, and that the contention placed thereon by counsel is the correct one, then how stands the case? Not one whit more favorable to respondent than it woüld be if it rested upon the construction placed upon it by the court, for the obvious reason that the very language relied upon by counsel as constituting the basis for the contention, that the judgment was final and not one of nonsuit, shows that “plaintiffs took a nonsuit before the court rendered judgment in said action in favor of defendant, against plaintiffs.”

Under our-Practice Act, an involuntary nonsuit is merely a dismissal of plaintiff’s ease, when done before the cause is finally -submitted to the jury, or as was dono in the case tried at Independence.

In the case of Wetmore v. Crouch, supra, Judge Lamm, in speaking for the court, said: “It has practically been held that the word ‘nonsuit’ in the section involved means any judgment of discontinuance or dismissal yhereby the merits are left untouched.”

In support of that statement of the law, our learned associate reviews some of the decisions of this and other courts, as shown by the extended quotation before made from that case. To the same effect are the following cases: Waterworks Co. v. School Dist., 23 Mo. App. l. c. 235; West v. McMullen, 112 Mo. l. c. 409, 410 ; State ex rel. v. Railroad, 149 Mo. l. c. 109; Hudson Co. v. Young, 90 Mo. App. l. c. 513; Weithaupt v. St. Louis, 158 Mo. l. c. 659; Meddis v. Wilson, 175 Mo. l. c. 133.

If the nonsuit suffered by plaintiffs, at Independence, was in legal contemplation but the dismissal of their former suit, then it must necessarily follow that the circuit court of Jackson county, sitting at Independence, had no power or authority to enter the final judgment mentioned in favor of defendant and against - plaintiffs, as is contended for by counsel for respondent, for the simple reason that their suit, according to respondent’s own theory, was dismissed several days before the court undertook to .render the judgment mentioned, which was not done until after the motion to set aside the nonsuit was overruled, as shown by the record.

It is academic that a case must be pending in court before the court possesses the power to render judgment thereon; and in the former case between these parties, the only authority the court had, after the nonsuit was taken therein, was either to sustain the motion to set aside the dismissal or nonsuit, and thereby reinstate the cause which had been previously dismissed, or to overrule said motion, as was done, and thereby leave the cause of action where the plaintiffs had placed it by taking the nonsuit, namely, outside of and beyond the jurisdiction of the circuit court.

We are, therefore, of the opinion that the judgment rendered by the circuit court, at Independence, was not a final judgment upon the merits of the cause, but was . a judgment of involuntary nonsuit.

II. It is next insisted by counsel for respondent, that appellants, the plaintiffs in the former case, had not suffered a nonsuit as contemplated by sections 2868, as amended by the Act of 1905, and 4285, Revised Statutes 1899, until the order of the court overruling the motion to set .aside the nonsuit taken in that case had been disposed of on appeal; and quotes in support thereof the following language from the case of Wet-more v. Crouch, supra, p. 653: “Again, for the purpose of advancing the remedy, this court in Chouteau v. Rowse, 90 Mo. 191, held that it was not necessary to sue within one year after the judgment of nonsuit was rendered in the circuit court, but that if the second suit was commenced within one year after such judgment on plaintiff’s appeal was affirmed in this court, it was 'well enough. It was observed in that case, by way of subtle analysis to further argument, that the statute does not say within one year after a non-suit was taken or after a judgment for nonsuit was entered, but within one year after such nonsuit was suffered, and it was held that a party has not suffered a nonsuit until a judgment of nonsuit is entered to the enforcement of which no legal impediment exists, which fact could not exist as long as the judgment was held up by appeal.”

That case simply holds that where an appeal has been taken from the order or judgment of the court overruling a motion to set aside a nonsuit, and the judgment is affirmed, the plaintiff then has, under said sections of the statutes, one year from the date of the affirmance in which to commence a new suit upon the same cause of action stated in the original petition. But that case does not hold that plaintiff in such a case must appeal from the order overruling the motion to set aside the nonsuit and to reinstate the cause, before he can avail himself of said statutes, and begin the new suit thereby authorized. If he does appeal and executes the appeal bond, then the judgment of dismissal rendered on an involuntary nonsuit is superseded and suspended until the cause is determined in the appellate court; and, as before stated, the suit may again be brought within one year from and, after that time. But if an appeal is not taken, then there is no suspension of the judgment of dismissal, which is effectual from and after the date of its rendition and in such a ease the new suit authorized by said sections must be begun within one year from the date of said rendition. These views are fully supported by the following cases: Chouteau v. Rowse, 90 Mo. l. c. 194; Hewitt v. Steele, 136 Mo. l. c. 333; Estes v. Fry, 166 Mo. l. c. 81; Wetmore v. Crouch, supra, l. c. 653-4; Hudson Co. v. Young, 90 Mo. App. l. c. 513.

In this discussion of this question, Norton, J., in the first named case, in speaking for the court, said: “It is conceded that the present suit was not commenced within one year after the judgment of non-suit was rendered by the circuit court, but that it was commenced within one year after the said judgment on plaintiff’s appeal to this court was affirmed, on the 20th of April, 1874, the case being reported in 56 Mo. 67. It is affirmed on the part of defendant that, inasmuch as the present action was not begun within one year after the judgment of nonsuit was taken in the circuit court, and inasmuch as more than five years had elapsed from the time plaintiff’s right of action accrued and the institution of the suit, such right is not saved by section 3239, Revised Statutes 1879, but is forever barred, which section is as follows: ‘If any action shall have been commenced within the times respectively prescribed in this chapter, and the plaintiff therein suffer a nonsuit, or after a verdict for him the judgment be arrested, or after a judgment for him the same be reversed on appeal or error, such plaintiff may commence a new action from time to time, within one year after such nonsuit suffered, or such judgment arrested or reversed, ’ etc. This proposition is denied by plaintiffs, and they affirm that the action having been brought within one year after the rendition of the judgment by this court affirming the judgment of the circuit court, is not barred according to the true intent, meaning, and spirit of said section, but is thereby saved. Counsel for defendant, in an argument more ingenious than sound, insists that ‘Ua lex script a est,’ and that the statute should be literally and strictly construed, without regard to that other maxim, ‘que haeret in litera, haeret in cortice.'’ In so far as the act in question has been construed by this court, it has been literally construed with a view to accomplish the purpose of its enactment. [Shaw v. Pershing, 57 Mo. 417; Briant v. Fudge, 63 Mo. 489; Wood v. Nortman, 85 Mo. 298.] It will be observed that the- statute does not in terms provide that the suit shall be brought within one year after nonsuit is taken or judgment'of nonsuit entered, but within one year after such nonsuit is suffered. When, in contemplation of this statute, may it be said that a party has suffered a nonsuit. I think it is when a judgment of nonsuit is entered, to the enforcement of which no legal impediment exists. Nonsuits are either voluntary or involuntary, and it is held in the case of Shaw v. Pershing, supra, that both are included in, and referred to by, the act. When a voluntary nonsuit is taken, the plaintiff abandons his suit and it is ended; and we have held that from the judgment entered upon it, no appeal will lie, and in such, case the judgment is operative and enforceable, and the party thus suffering the nonsuit must, to be protected by the statute, bring his action within one year after the judgment is rendered. But not so in the case of an involuntary nonsuit, which the plaintiff, by some adverse ruling of the court, is driven or compelled to take, with leave to move to set the same aside with a view not to abandon the prosecution of the suit, but to further prosecute it by appeal, to test the correctness of such ruling. Such appeal, when taken, removes the cause from the circuit to the appellate court, and, when bond is given, as in this case, the judgment of nonsuit is superseded, and can only become operative and enforceable in the event of its being affirmed by the appellate court, and it is only when so affirmed that a plaintiff, in contemplation of this statute, can be said to suffer a nonsuit. If the legislative intent was as contended for by counsel, that intent could, and doubtless would, have been unmistakably expressed by making the section read, If any action shall have been commenced within the times respectively prescribed in this chapter, and a judgment of nonsuit is rendered, either upon a voluntary or involuntary nonsuit, the plaintiff may commence a new action within one year after the rendition of such judgment.”

And in the next case, Brace, C. J., clearly stated the law in the following language: ‘ ‘ This statute applies as well to voluntary as to involuntary nonsuits (State ex rel. v. O’Gorman, 75 Mo. 370), and when an appeal will lie, as now, from an order granting a uew trial, which arrests a judgment after verdict, and such appeal is taken, the judgment of nonsuit is thereby superseded, the case removed to the Supreme Court, and only when the judgment is affirmed by that court is a nonsuit suffered within the meaning of this statute, and the plaintiff’s action having been commenced within a year after the affirmance of the judgment in the first case, by the Supreme Court, her action was not barred. [Chouteau v. Rowse, 90 Mo. 191.]”

In Estes v. Pry, supra, Judge Marshall, on page 81, said: “The one year here allowed means one year after the judgment is entered for a nonsuit, in arrest, or for a reversal, and this is true whether such judgment is entered in the trial or appellate court. [Chouteau v. Rowse, 90 Mo. 191; Hewitt v. Steele, 136 Mo. 327.] So that this suit was begun within one year from the date on which the nonsuit was suffered, and hence is not barred by limitation.”

As to the case of Wetmore v. Crouch, supra, we set out what Judge Lamm; said therein, regarding the question under consideration, which need not he repeated here.

In the case of Húdson-Kimberly Publishing Co. v. Young, 90 Mo: App., supra, the judgment of nonsuit was not appealed from. On page 513, the court said: “An involuntary nonsuit is merely a dismissal of the plaintiff’s cause of action, when it is taken before the case is finally submitted to the jury, the court sitting as a jury, or the court.”

In the case of Meddis v. Wilson, 175 Mo. l. c. 132-133, no appeal was taken from the judgment ordering an involuntary nonsuit. The court says: ‘ ' The plaintiffs who 'suffered’ such nonsuit might have commenced an action within one year after such nonsuit was 'suffered.’ ”

Under the light of the foregoing adjudications, it cannot, it seems to us, be logically held that the statutes under consideration do not authorize the plaintiff, who suffered an involuntary nonsuit, not appealed from, to bring a new suit within one year from the date of the rendition of said judgment of nonsuit.

We, therefore, rule this insistence against respondent.

III. A question is raised and discussed as to whether or not section 2868 as amended by the Act of 1905 (Laws 1905, p. 138), is applicable to this case. The record shows that the nonsuit mentioned was suffered at the June term, 1906, of the circuit court of Jackson county, sitting at Independence; and the act in question was approved April 12, 1905. This identical question was presented to this court in the case of Clark v. Railroad, 219 Mo. 524, and by an unanimous court it "was answered in the affirmative. That case has since been followed by this court in Banc in the ease of State ex rel. v. Taylor, 224 Mo. 393. Those cases are controlling in this one. But in this particular case, this question is of minor importance, for the reason that under the undisputed facts, the case clearly comes within the provisions and saving clause of section 4285, Revised Statutes 1899.

The judgment is, therefore, reversed, and the cause remanded.

All concur.


source: Caselaw Access Project

author: VALLIANT, C. J.

license: Public Domain

text:
    THE STATE ex rel. SKRAINKA CONSTRUCTION COMPANY v. MAXIME REBER, President of Board of Public Improvements, and BENJAMIN J. TAUSSIG, Comptroller, of St. Louis.
    In Banc,
    March 7, 1910.
    1. OFFICER: Ministerial Duty: Delegation. The ministerial duty or clerical work of an administrative officer may be delegated to a clerk or assistant with proper care.
    2. -: -: ---: Discretion: Special Taxbiil. The signing of a special taxbiil, legally issue'd by the city in payment for a public improvement, does not require the personal discretion or judgment of the president of the board of public improvements, or of the comptroller, but is a mere ministerial duty; and, therefore, being authorized by an ordinance to do so under proper precautions, the president may designate a clerk or assistant to sign his name to such special taxbills, and the comptroller may likewise designate a clerk or assistant to countersign them in his name, and such' signing is as valid as if the officers had themselves attached their signatures.

      3. CHARTER PROVISIONS: Delegation of Powers By Officer: Assistant. Sections of the city charter empowering the municipal assembly to transfer the duties of one officer, in whole or in part, to another, mean from one city officer to another city officer, and not from one such officer to his clerk or assistant, his mere appointee, for such clerk or assistant is not a city officer. But under a charter provision requiring the officer to authenticate special taxbills, the council may properly enact an ordinance which designates the precautions under which such officer’s purely ministerial duty, such as the signing of his name to the taxbills, may be done by a clerk or assistant.
    Mandamus.
    Whit denied.

      Hickman P. Rodgers for relator.
    The relator in this case stands- on a literal interpretation of the charter of the city of St. Louis. Assessments for cost of local improvements are proceedings m invitum and, unless regular, special tax-bills based thereon are invalid. The contractor in this case, having faithfully performed its part of the contract with the city, is entitled to valid taxbills — bills above suspicion. On the face of the charter it appears that special taxbills must be “certified” and “authenticated” by the president of the board of public improvements and “countersigned” by the comptroller, but whether the charter may be so construed as to permit the officers named to delegate these acts of official duty to assistants is a question that has never before been presented to this court. That a public official can-. not delegate to an assistant the exercise of a discretionary duty is too clearly settled to require argument or authority; and that the municipal assembly cannot by its ordinance amend the charter of the city is equally clear. Therefore, unless this court holds said acts of certifying, authenticating and countersigning to be of mere ministerial character, or unless the common-law rule with regard to vicarious signatures is broad enough to control the present case, then it is the duty of respondents to sign said special taxbills with their own hands, and the alternative writ should be made peremptory.

      L. E. Walther and B. H. Charles for respondents.
    (1) Ministerial duties may be delegated. Mechem on Pub. Offices and Officers, sec. 568; Grady v. Insurance Co., 60 Mo. 123; Neiner v. Altemeyer, 68 Mo. App. 246; Hernán v. Loevy, 179' Mo. 455. (2) (a) A ministerial act as applied to a public official is defined to be an act or thing' which he is required to perform by direction of legal authority, upon a given state of facts, independent of what he may think of the propriety or impropriety of doing the act in the particular case. State ex rel. v. Cook, 174 Mo. 118; Flournoy v. Jeffersonville, 79 Am. Dec. 468; Ray v. City, 90 Ind. 572; Porter v. Paving Co., 214 Mo. 1; Hernán Con. Co. v. Loevy, 179 Mo. 455. (b) Mandamus will lie to compel an officer to perform a specific ministerial duty, but not to control discretionary acts. 26 Cyc., p. 337, and cases above cited, (c) The act of the president of the hoard of public improvements in signing, and of the comptroller in countersigning, special taxbills, is ministerial, (d) It may be compelled by mandamus. State ex rel. v. Paving Co., 183 Mo. 230; State ex rel. v. City, 211 Mo. 591. (3) A person’s name signed by another person with his authority is his signature. 25 Am. and Eng. Ency. Law, p. 1066; Porter v. Paving Co., 214 Mo. 1; Grady v. Insurance Co., 60 Mo. 123; Hanson v. Rowe, 26 N. H. 327; Richardson v. Bachelder, 19 Me. 82; Achorn v. Matthews, 38 Me. 173; Kidder v. Prescott, 24 N. H. 267; Vines v. Clingsfost, 21 Ark. 309; Streff v. Colteaux, 64 111. App. 179; Hotchkiss v. Cutting, 14 Minn. 537; Lewis v. Holley, 22 L. R. A. 297; Ellis v. Francis, 9 Ga. 327. (4) A special taxbill certified by the president of the board of public improvements and countersigned by tbe comptroller, is only prima-facie evidence of the execution of the yrork, the correctness of the rates and' prices and amount of work and material, and of the liability of the person named therein as owner of the land charged with such bill to pay the same. It is not conclusive. Art. 6, sec. 25, Charter of St. Louis; Gallagher v. Bartlett, 64 Mo. App. 258; Hill v. Hutchinson, 100 Mo. App. 294; Hernán v. Franklin, 99 Mo. App. 346; Farrell v. Rammelskamp, 64 Mo. App. 425. (5) The municipal assembly has the power to define the duties of all city officers, and to transfer and distribute the powers and duties in whole or in part, of any office provided for in the charter, to another or others. Charter, art. 3, sec. 32; art. 4, secs. 28 and 45.
   VALLIANT, C. J.

This is an application for a writ of mandamus to require the president of the board of public improvements and the comptroller of the city of St. Louis to sign, with their own hands, certain special taxbills issued to relator in payment of work done by him, under contract, in the street department of the city. The cause is before us on the petition of the relator, the return of the respondents, and a motion by relator for judgment on the pleadings.

The facts shown by the pleadings are as follows:

In 1908 the relator entered into a contract with the city to pave an alley, or part of one> according to specifications; he duly performed his contract and was entitled to receive special taxbills in payment for the work; these taxbills were made out in due form by the proper officers and tendered to relator, but he declined to receive them for the reason that the president of the board of public improvements did not, with his orwn hand, sign them, nor did the comptroller, with his own hand, countersign them, as by the terms of the city charter, as relator construes it, they were required to do, but their names were signed by an assistant appointed by each to perform fhat duty, as certain ordinances of the city .authorized. .

The return sets forth at length and in detail the duties of the president of the board of public improvements, as prescribed by the charter, many of which are of a character that require the exercise of a high degree- of discretion and good judgment and others are of a ministerial character, and it is shown that in the performance of the duties demanding the exercise of discretion and judgment practically all the time of the officer is consumed, and it is physically impossible for him to' do "’with his own hand all the work of the kind that relator seeks to have him do without neglecting the more important duties that none but he can do. And so it is, though perhaps not to so great a degree, with the comptroller. These facts are admitted.

In order to meet the situation the municipal assembly passed an ordinance No. 24526 entitled, “An ordinance authorizing the President of the Board of Public Improvements to designate an assistant, clerk or other subordinate to execute vouchers, requisitions and special taxbills for such president and providing •for the deposit of such designation and a copy of the signature of such assistant, clerk or subordinate with the Register.” The ordinance requires as a precaution, for the identification of the signature, that the person designated shall write the signature of the president of the board of public improvements on the same sheet that contains the appointment and that it be filed with the register, and when that is done he is authorized to sign for the president special tax-bills and other specified documents. A like ordinance, No. 24527, was passed in reference to the comptroller. Acting under those ordinances the officers named appointed each an assistant or clerk to perform that duty and it was by such so performed in this case.

Work of the kind performed by the relator was, by the terms of the charter, “charged upon the adjoining property as a special tax and collected and paid as hereinafter provided.” [Sec. 18, art. 6.] The president of the board of public improvements “shall authenticate all special taxbills against property-, owners chargeable with special taxes for work performed or materials furnished under ordinances of the city, which said bills shall be made out and certified to him by the head of the department under which said work is done or material furnished.” [Sec. 41, art. 4.] The usual mode of proceeding to accomplish the paving of a street or alley is for the board of public improvements in regular session to consider the question of the desirability and expediency of making the improvement and if they decide to have the work done they have an estimate made of the cost and they prepare an ordinance to be submitted to the municipal assembly authorizing it, and submit at the same time the estimated cost; if the ordinance is passed a contract is let and the execution of the work is turned over to the street commissioner; if the work is accomplished according to the contract the street commissioner makes, or causes to be made under his eye, calculations of the share of the cost of the work chargeable to each lot or piece of property and special taxbills so showing; these taxbills the street commissioner delivers to the president of the board of public improvements for his signature, and when signed the president delivers them to the comptroller for his countersigning and when countersigned the comptroller delivers them to the contractor.

As has been said already the duties of the president of the board of public improvements are of two kinds, the one is such as requires the exercise of discretion and judgment, involving often scientific and technical knowledge, the other requires the performance of mere ministerial or clerical work. The duties first mentioned cannot be delegated, those of the ministerial hind may be delegated with proper care.

Respondents in their brief refer to section 32, article 3, of the charter, which authorizes the municipal assembly to transfer the duties of one officer in whole or in part to another, and also to section 45, article 4, which empowers the municipal assembly to create other offices, but neither of those sections applies to the facts of this case. The section which empowers the assembly to transfer the duties in whole or in part from one officer to another, means from one city officer to another city officer, but the assistant whom the president of the board of public improvements is authorized by ordinance 24526 to appoint is not a city officer, neither is the assistant appointed by the comptroller, nor does either of those ordinances create a new office as contemplated in section 45, article 4; the appointee is a mere clerk or assistant to the officer appointing him. Therefore if the duty of signing these special tasbills is one that requires the esercise of his personal discretion or judgment by the officer, the ordinances above mentioned are not sufficient to render the signatures by the assistants valid; an ordinance cannot override a charter provision. But it is impossible to conceive an important city office, crowded with a multitude of affairs from year’s end to year’s end, without being incumbered with a large quantity of work that is purely ministerial or clerical in its character, and such work must of necessity be performed by mere employees. When special taxbills are made out by the street commissioner and by him delivered to the president of the board it is his duty to authenticate them and deliver them to the comptroller.

There are two sections of the charter that seem to be inconsistent with each other. Section 41, article 4, defining the duties of the presidént says: “He shall authenticate all special tasbills against property-owners chargeable with special taxes for work performed or materials furnished under ordinances of the city, which said bills shall be made out and certified to him by the head of the department under Which said work is done or material furnished.” Section 24, article 6, says: “All special taxbills for work contemplated by this charter shall be made out by the president of said board and by him registered in his office in full, and certified and delivered to the comptroller,” etc. The city counsellor in his brief, calling attention to this apparent inconsistency, accounts for it by suggesting that the president of' the board having general supervision over all the departments, the act of the head of any department may be considered his act, therefore, the special taxbills made out by the head of one of the departments under his supervision may be considered as made out by him. The most that can be said for that suggestion is that it is the only one that can be given by way of explanation or by which the two sections can be harmonized. But it is conceded by the pleadings, in this case that the course of procedure is for the street commissioner to make out the special taxbills for street improvements and deliver them to the president. And when we look at the further conceded fact that even the signing of the many thousands of special taxbills is such a task that it cannot be performed by the officer himself without the negleet of more important duties, we can imagine what the greater difficulty would be if the officer had not merely to sign the bills, but had first to make the calculation of the proportion of the whole costs of the work that was chargeable on each lot or piece of property and then with his awn hand make out th'e bills. Relator is not here complaining that the president did not make but the taxbills, but only that he did not sign tlfem. The requirement of section 41, article 4, is that, “He shall authenticate all special taxbills.” If that should be construed to mean that he must go- over the calculations made by the street commissioner to see that the apportionment to each lot of the total cost is correct, and that that must be done in person, the task would be as great and as enduring as if he had made the calculations himself in the first instance. The authentication required by that section of the charter is the certification, evidenced by his signature, that the taxbills are those that came to him through the regular official channel. It is doubtless his duty under the ordinance to receive personally from the street department the takhills and himself deliver them to his assistant to be signed and himself deliver them to the comptroller and take his receipt. But all that is ministerial work, not work of unimportance, not work to be carelessly done, but still not work that requires the exercise of discretion and judgment. The discretion that the president of the board of public improvements has in reference to the subject is exercised when he counsels with the other members of the board in their meeting on the subject of the then contemplated street improvement, when he draws or assists in drawing the ordinance, when he assists in awarding the contract, etc., but after the contract is let and the work is done and the street commissioner has found that it is done according to the contract and makes out the taxbills and delivers them to the president, the latter has then no discretion, but it is his simple duty to authenticate them by his signature and deliver them to the comptroller. An officer to whom a discretion is entrusted by law cannot delegate to another the exercise of that discretion, but after he has himself exercised the discretion he may, under proper conditions, delegate to another the performance of a ministerial act to evidence the result of his own exercise of the discretion. The clerk cannot pronounce judgment, but he may under direction of the judge make the record evidence of it. In Porter v. Paving Co., 211 Mo. 1, it was held that the signature of the mayor, which the law required to be subscribed to an ordinance to show that it was approved by him, might under the mayor’s direction be written by his secretary, We do not mean to say that an officer to whom the performance of even ministerial work is personally entrusted may, under all circumstances, delegate to another the performance of that duty, but we are aiming to draw the distinction in that particular between an official act requiring the exercise of personal discretion or judgment and a mere ministerial act which requires the exercise of no discretion, and to say that whilst the one cannot be delegated the other under certain circumstances may be.

In the case before us we hold that the acts of signing the names of the president of the board of public improvements and the comptroller are ministerial acts and may under proper conditions be delegated, and we hold that the circumstances of this case render it proper that these officers, with the approval of the municipal assembly, shown by the ordinances in question, should delegate the authority to sign their names as has been done to these special taxbills, and 'we hold that ordinances 24526 and 24527 are valid, and that the bills so signed are as valid as if they had been signed by the president of the board of public improvements by his own hand and countersigned by the comptroller with his own hand.

The writ of mandamus is therefore denied.

All concur.