(after stating the facts) .--A set-off or counterclaim filed in an action (except in a certain class of cases, of which this is not one) by section 4499, Revised Statutes 1899, is deemed in law as an independent action begun by defendant against the plaintiff, and the dismissal or discontinuance of plaintiff’s action does not affect the set-off or counterclaim, but the defendant may, notwithstanding the dismissal or discontinuance of the plaintiff’s cause of action, prosecute his set-off or counterclaim to a, final judgment, and in all respects he occupies the position of plaintiff as to such set-off or counterclaim.

In Thompson on Trials, section 2229, it is stated: “The failure of the plaintiff to appear, when his case is called for trial, is equivalent to the expression of an election on his part to become nonsuited.”

In Nordmanser v. Hitchcock, 40 Mo. l. c. 183, it is said : “If the plaintiff does not come into court and prosecute his suit, no judgment can be taken against him, and his action .should be dismissed, or judgment of non-suit rendered.” (This rule is now changed by section 4499, supra, as to a set-off or counterclaim filed by the defendant.)

In Wright v. Salisbury, 46 Mo. l. c. 28, it is said: “The court does not sit to represent parties, but to hear their allegations and proofs; and if they fail to appear and present their demands, it can only dismiss them without adjudication.” [See also Clowser v. Noland, 72 Mo. App. 217.]

*196The court, in this case, notwithstanding the plaintiff failed to appear in person or by attorney to prosecute her demand, took up his side of the case, represented him in the taking of the evidence, found for him on his cause of action and rendered judgment in his favor. In the circumstances, the court was without jurisdiction to render any judgment in plaintiff’s favor. She should have been nonsuited or her cause of action dismissed. [Authorities, supra].

The judgment is therefore • reversed and the cause remanded.

(dissenting). — No doubt if a plaintiff fails to appear his case ought, as a general proposition, to be’ dismissed. But this rule, like all others, has limits and ends where it cannot be enforced without losing sight of reason and justice. The facts in the record of this case are peculiar. Under the law as it now stands, the dismissal of a plaintiff’s case does not carry a counterclaim with it, but there may be a trial and judgment on the latter after the main case is dismissed. The counterclaim pleaded by the defendant admitted an indebtedness to plaintiff and only ashed that his counterclaim he allowed in reduction of whatever rent he owed plaintiff. He has never asked for an independent judgment on his counterclaim. Now when plaintiff did not appear at the trial, the defendant pressed for a judgment on his counterclaim, and introduced the lease in evidence under which his indebtedness to plaintiff accrued. The witness himself swore, in making out his counterclaim, that he owed plaintiff $650 rent and claimed an offset of $94. Therefore, the judgment of the court Avas in exact accord with the defendant’s OAvn pleadings and testimony, and. I think Avas right. The court could not have done otherwise without acting contrary to what defendant asked in the very counterclaim he pressed to a judgment Therefore, the court Avas, in a sense, forced by defendant’s own pleading and testimony to reinstate *197plaintiff’s case and give judgment as defendant demanded. Was the court to award defendant a judgment on his counterclaim against all justice, without reference to what he confessed he owed plaintiff, and in the teeth of his prayer that ivhat he claimed against her should he allowed in reduction of what he admitted owing her? The court did not take up plaintiff’s case and try it, but simply entered judgment on the evidence produced by defendant and in accordance with the pleadings. In truth the defendant does not pretend to assert that the judgment was unwarranted by the merits of the case or that he has been prejudiced. He stands on a naked technicality. For that reason I think the judgment should be affirmed.