ALSOP v. McCOMBS et al.

ALSOP v. McCOMBS et al. (Circuit Court of Appeals, Eighth Circuit April 25, 1918.) No. 5024. Courts <S=»352 — Federal Courts — State Practice — Voluntary Nonsuit. Crider Itev. St Mo. 1909, § 1980, providing that “the plaintiff shall be allcwod to dismiss his suit * * * at any time before the same is finally submitted,” which by Rev. St. § 914 (Oonipi St. 1916, § 1507), governs federal courts in that state, a plaintiff may of right take a nonsuit at any time before the jury has actually retired. <¿s~>B1or other eases see same topic & KJüY-NUMBEít in all Key-Numbered Digests & Indexes In Error to the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge. Action at law by James N. Alsop against Ruddell M. McCombs and others. Judgment for defendants, and plaintiff brings error. Reversed. Chester H. Krum, of St. Eouis, Mo. (George W. Jolly, of Owensboro, Ky., on the brief), for plaintiff in error. Jeffries & Corum, of St. Louis, Mo., and Oliver & Oliver, of Cape Girardeau, Mo., for defendants in error. Before HOOK, CARLAND, and STONE, Circuit Judges. [MAJORITY — STONE, Circuit Judge.] 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.” 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.