ON MOTION FOR REHEARING.
STURGIS, J.Our attention is called by the motion for rehearing and to modify the opinion to the fact that no verdict was rendered in the trial court for the'reason that when the court gave for defendant the instruction in the nature of a demurrer to the evidence- and directing the jury to find for defendant, the. plaintiffs at once, as was their right, took an involuntary *452nonsuit and only a judgment of nonsuit was entered. The plaintiffs then moved to set aside the involuntary nonsuit and to grant them a new trial, which motion the court sustained. From this order the defendant appealed, as it had the right to do. State ex rel. v. Railroad, 149 Mo. 104, 109, 50 S. W. 278.] The only point presented by such appeal is the correctness of the court’s ruling in sustaining the demurrer to plaintiffs ’ evidence. This point we have resolved in defendant’s favor, hut such ruling does not entitlé defendant to a final judgment in its favor. The plaintiffs had a right to take a nonsuit, as they did, at any time prior to a final submission and verdict for the very purpose of preventing a final judgment against them. “The effect of the judgment is not the same in both cases, (to-wit: on a nonsuit and on a verdict), the cause of action being extinguished in the judgment on a verdict, but surviving the judgment on the nonsuit.” [State ex rel. v. Railroad, supra.]
In the case of Cohn v. Railroad, 182 Mo. 577, 81 S. W. 846, relied on by plaintiffs for an affirmance oi the judgment, the nonsuit was not based'Solely on the giving a demurrer to the evidence, but also on the ground that the court had refused to allow plaintiff tc amend the petition and, as the nonsuit was properly set aside.on this latter ground, the court held that il would not consider the question of the demurrer tc the evidence. Here, however, the setting aside of the nonsuit involved only the correctness of the court’i ruling in giving the demurrer, and having held tha the demurrer was properly given, we shall do here what was done in the case of Coatney v. Railroad, 151 Mo. 35, 51 S. W. 1036, reverse the order of the tria court setting aside the nonsuit and remand the casi with directions to overrule such motion.
It is so ordered.
Farrington, J. concurs. Robert son, P. J., having heretofore dissented, expresses n< opinion.