Corder v. Corder , 189 S.W.2d 100 ( 1945 )

I am unable to agree the record in this case secures to the plaintiff the right under the rule to a non-suit. I think a similar statement of facts has never yet reached the courts.

The rule does not say at any time before the decision has been fully and finally announced, nor that the non-suit may be taken concurrently or simultaneously with the announcement but it says "before." Announce or announced is defined to mean to give public notice of; to publish; to pronounce; to declare by judicial sentence, Webster's New International Dictionary. "Before" means in advance of; earlier than; preceding in time; previously to; in advance of; previous to the time of; sooner than. Same authority. In a very similar statute which provides the non-suit may be taken at any time before trial, it was held to mean before the commencement of the trial and not before the conclusion of the trial. Empire Ranch Cattle Co. v. Herrick et al., 22 Colo. App. 394,124 P. 748. The same holding is found in Bettis v. Schreiber, 31 Minn. 329,17 N.W. 863. In the prior removal statutes which required a petition to remove be filed "before the trial" and "before the trial or final hearing," it was held those provisions mean before the trial or final hearing are begun in good faith. Jifkins v. Sweester, 102 U.S. 177, 26 L. Ed. 129.

Certainly one object of the Rules is to secure order and decorum in the trial of cases at all their stages and not disorder and confusion. This writer is not ready yet to attribute to the rule making power the purpose to make a mockery of court room procedure. Here only three or four words were required to complete the announcement of the decision such as "judgment for defendants" or "against plaintiff." Counsel frankly admits he at this stage of the announcement "interrupted" the court. Where is the dignity of the court if he must yield the floor at any point in the course of his announcement to counsel or race with him to the end to determine who can say it first? What a public performance and spectacle!

It seems to the writer no case has gone so far as yet. The cases cited by appellant and by the majority are thought not to be in point on the facts. In Kidd v. McCracken; Texas Electric Ry. Co. v. Cox; Odum v. Peeler; and McAlister v. Harvey, there had been no announcement nor the commencement of any by the court. In Adams v. St. Louis Southwestern Ry. Co., the court had merely made a preliminary statement of what his decision would be. Humphrey v. Humphrey, was a case in which the court exercised his discretion, which has been many times held to be proper. In Houston T. R. C. Co. v. McDade, there had been no announcement in open court, but an announcement in chambers as to what the court would do and was preparing to do. It was also the exercise of discretion. And in the case of Osterritter et ux v. Board, there had been a mere "indication" of the court's opinion as to what the judgment should be.

It follows of course, in my humble opinion, the judgment should on this point be affirmed.