ON MOTION FOR A REHEARING. Defendant insists that it has a right to an appeal because an order setting aside a voluntary nonsuit is a "special order *Page 311 after judgment," "that the order made in entering a voluntary nonsuit is a final judgment."
We pointed out in the original opinion that there has been no judgment in this cause and that fact is made more apparent by an examination of section 1410, Revised Statutes 1919, which permits the plaintiff to take a nonsuit "at any time before the same is finally submitted to the jury or to the court sitting as a jury and not afterwards." It has been held that plaintiff as a matter of right can take a voluntary nonsuit even without being given permission to do so by the court. [Derrington v. City of Poplar Bluff, 186 S.W. 561, 562, and cases therein cited.] It is quite plain that there has been no final judgment in this case. The case of Whitfield v. Light Power Co., 271 S.W. 52, is not in point. That case involved an involuntary nonsuit.
The motion for a rehearing is overruled.