Opinion
No. 7013.
October 11, 1951.
APPEAL FROM THE CIRCUIT COURT, CHRISTIAN COUNTY, TOM R. MOORE, J.
William A. Ratican, Jr., Aurora, Clarence O. Woolsey, Springfield, Joe C. Crain, Ozark, for appellants.
Theodore Beezley, Springfield, Gordon J. Massey, Ozark, for respondent.
Appellants (defendants below) appeal from an order of the circuit court permitting respondent (plaintiff below) to dismiss its cause of action.
This was a condemnation proceeding. The City of Marionville, in a petition, filed in Lawrence County, sought to condemn an easement in a stream of water for the purpose of permitting effluent from its sewage system and disposal plant to flow into it. Defendants below filed a motion to strike out certain parts of the petition, which was overruled. Commissioners were appointed to assess the damages. After qualifying, they made their appraisement of damages and reported to the circuit court, assessing the damage of each of the defendants at $1. To this report the defendants filed exceptions upon the ground that the damages awarded were inadequate, unreasonable and insufficient to compensate the defendants for their respective interests in the stream. Nothing further was done until the plaintiff filed an application for a change of venue. This application was sustained and the case was sent to Christian County where, on the 26th day of January, 1951, the plaintiff. ore tenus, moved the court to dismiss "its petition and action in condemnation * * *." This motion was sustained "for the reason that the plaintiff could not, under its charter powers, condemn a stream of water, * * *." From this order, defendants have appealed.
The right to appeal is purely statutory, there being no such right at common law. Mo.Digest, Appeal and Error. 1.
Our statute, Sec. 512.020, Mo.R.S. 1949, provides that any party to a suit "aggrieved" by any judgment, may, under certain circumstances, appeal. But it has been held that where a suit is dismissed by the plaintiff, the defendant is not "aggrieved" within the meaning of the statute, and is not entitled to appeal. McIlvain v. Kavorinos, 358 Mo. 1153, en banc, 219 S.W.2d 349; McIlvain v. Kavorinos, Mo.App., 212 S.W.2d 85; McCormack et al. v. Dunn, 232 Mo. App. 371, 106 S.W.2d 933; Fenton v. Thompson, 352 Mo. 199, 176 S.W.2d 456; McClain v. Kansas City Bridge Co., 338 Mo. 7, 88 S.W.2d 1019; Lines Music Co. v. Holt, Mo.App., 48 S.W.2d 92.
However, an appeal to this court would avail defendants nothing because a plaintiff has the right to dismiss its cause of action at any time before the same is finally submitted to the court or jury. Section 510.130, Mo.R.S. 1949; Stitch v. J. J. Newberry Co. et al., 336 Mo. 467, 79 S.W.2d 447; Sharp v. Stiles et ux., Mo.App., 187 S.W.2d 770; Hiatt v. Hiatt, Mo.App., 188 S.W.2d 863; Fenton v. Thompson, 352 Mo. 199, 176 S.W.2d 456; Eighth Morgan Garage Filling Station v. City of St. Louis, 342 Mo. 874, 119 S.W.2d 202.
It is unnecessary for us to decide whether the trial court was right in stating in the order of dismissal that the plaintiff could not "under its charter powers condemn a stream of water, * * *." In any event, the plaintiff had the right to dismiss its case so the trial court reached the correct result whether it gave the right reason or otherwise. Such a recitation, if erroneous, was not one "materially affecting the merits of the action." See Sec. 512.160, Mo.R.S. 1949.
For the reasons herein expressed, this appeal should be dismissed. It is so ordered.
BLAIR and McDOWELL, JJ., concurs.