*1 and it is should be reversed so ordered. Dalton and Tan Osdol, CG., foregoing opinion by C., Bradley, All as the of the court. Jones, Appellant, v. Thomas H. Williams and Olive Wil-
Thomas
liams. No. 40433. 209 S. 907. Two, February 9,
Division 1948.
Supplemental Opinion Filed, March Rehearing Overruled, April or to Transfer to 12,1948. Motion Banc V. appellant. John Goodson for *2 Hughes, B. Hughes,
Ban John B. Waldo Edwards B. and Paul Hess, Jr., for respondents.
filed a [908] WESTHUES, the Circuit Court of Macon C. Plaintiff, Jones, County, on November Missouri. On 9, 1944, January 23, 1947, the trial sustained defendants’ motion to court' petition. dismiss the Plaintiff then filed motion for new trial which appealed. was overruled and he defendants, respondents
The here, filed a motion to dismiss the appeal. They have filed no brief on merits. In appellant’s brief no reference was made to petition. the contents of subject In no reference was made in the brief to the matter of fact lawsuit, appellant any point nor has of whether the stated a cause of points action. The for re- questions of procedure. view are therefore limited to respondent? appellant’s In the motion to dismiss assert that grounds does not contain a concise statement which this vest jurisdiction of appeal. court with The brief contains a state- ment title to real estate involved. No other is statement was sought made with reference to the nature of the action or the relief petition. The bare statement made a conclusion and under jurisdiction by We have our insufficient. determined an rules petition. examination say any judgment
Respondents the record does not contain supplied. only exists that could be further that no made’by entry or order the trial court considered a sustaining defendants’ motion the order dismiss the grounds therefor petition. This motion to dismiss stated as matter; jurisdiction subject lacked the trial court over the to state legal capacity sue; had not the that the failed tiff cause of a cause of action and further that the disclosed reads as action could be the motion stated. order follows: 1, 2, 3 & 4 as to counts
“Defendants’ motion to dismiss sustained plaintiff’s petition dismissed.” Exceptions for new trial were taken to that and motion ' was later overruled. Sec. 101 of Our page governs question. The latter of that section portion , reads as follows: any involuntary “. than one for lack dismissal other unless jurisdiction prejudice be with improper or for venue shall specify.” court in its for dismissal shall otherwise alleged petition failed to state the motion to dismiss that the Since *3 disclosed no cause a cause of action and also that a under Sec. stated, sustaining of such motion action could be from judgment a final prejudice 101 would be with and would be plain- "Wetherefore hold that appeal which an could be taken. [909] dismissed, on the petition was appeal, tiff had a when his is there- grounds indicated. The motion to dismiss above fore overruled. points all the we find that
Turning appellant’s now to have sus questions the trial court should pertain of whether requires This .judgment by default. plaintiff’s motion for a tained briefly possible. as We will state it as an examination of the record. upon the 9, 1944, and served November Plaintiff’s was filed January of Court Term 11, Í944. The on December defendants entry appearing at that 15, first January 1945. The opened on entry follows: 1945, reads as February 5, which was made on term attorneys all as for appearance “Hughes Hughes enter their & to dismiss. Same to file motion Leave to defendants defendants. filed.” a was non-resident alleged plaintiff that to dismiss
This motion costs no bond for subject Britain and that of Great and the state 5, 1945, shows entry, September made on filed. The next had been interlocutory judgment on for filed a motion plaintiff that Following this, an answer. filed had not ground that defendants 1945, 7, the court sustained September on record shows that granting until October conditionally, plaintiff to dismiss motion 7, overruled also, September The court on for costs. file a bond de- interlocutory' judgment granted and for motion plaintiff’s 28, record The or before October plead on leave to fendants 1945, 8, for costs on October filed a bond plaintiff shows that then to dismiss filed their motion 24, defendants that October and .on on the that it did not state a cause of ac- tion. This motion forepart opinion. was referred to of this 8, 1945, On December plaintiff asking filed second motion for in- terlocutory judgment, alleging that defendants were leave plead or 28, 1945, before October had been and 1946, filed January 31, the defendants. On overruled the# plaintiff’s interlocutory judgment gave plain- motion for and leave to tiff to file a motion to strike defendants’ motion dismiss files. from.the The day. motion filed alleged was This the defend- motion ants’ responsive was giving not td de-' fendants’ plead leave to and that the motion bad not been to dismiss attorney. 8, served on February 1946, his On plaintiff’s court denied motion to strike to dis- defendants’ motion miss from the files. February On plaintiff filed motion for pleadings.on on the that defendants were February On 26, 1946, default. plaintiff’s motion for further, pleadings was overruled. No seems have been action January taken thereafter 21,‘1947, until when the record shows that the' case January was set for trial for 1947. The record then January 23, discloses attorneys pres- defendants’ ent in attorney court and plaintiff’s present, but announced appearing plaintiff. be was only not pending motion then in the case was defendants’ plaintiff’s petition. motion to dismiss record shows that the plaintiff’s court asked if he counsel wished to replied: be heard on that and merely counsel “I am here spectator, Your Honor.” The court then sustained defendants’ mo- tion to dismiss the record shows that counsel . . ” objected duly . excepted, there Thereafter duly motion for hew trial was was overruled and *4 appealed. tiff
Appellant contends that he became to a judgment entitled de day January says fault on of the Term, the second 1945. He in his authority trial legal that the court was without thereafter to dismiss; proper leave to file to that procedure the was interlocutory citing enter judgment, to Sec. 1239 Mo. 1939, R. S. Creason, A.; R. Improvement Mo. S. Laclede Land & Co. v. 452, 457, 55; Rainey, l. c. 175 S. W. Stein v. Mo. 286 W. S. 53; Co., Cornoyer Oppermann Drug W. (2d) 56 S. 612. No interlocutory a to plaintiff judgment doubt is entitle an when the default, duly however, served is in Sec. 1240 defendant E. S. Mo. cause Mo. E. S. shown, to A., set aside authorizes a default a court, judgment timely motion and for permit good the In plaintiff file an answer. this case defendant to did not seek an interlocutory judgment until seven months after 'the defendants had leave to the court file a motion asked to dismiss and showing In contrary to the the motion was filed. absence we the trial properly must assume that exercised its discretion in permitting to defendants contest claim. If sufficient for grounds existed such action it was useless thereafter to enter an interlocutory judgment only be permit set and to aside the de- However, complete fendants to contest case. answer to case, in supra. tiff’s contention be found In Creason that in case Creason was complete default. The trial court entered a judgment plaintiff against was not en- any titled to controversy relief and decreed title to land in in Creason, defaulting reviewing defendant. This court in judgment in concluding portion said of opinion: “It the judgment follows that herein be. should reversed and the general remanded with against case directions make a finding dismissing plaintiff, petition its and in of costs, favor defendants affording but refrain from affirmative Creason, relief defendant who made default.” McCrosky Burnham, (Mo.
See also 282 W. App.) l. c. (3) (4, 5). In it a judgment by that ease was held default should in plaintiff’s petition not be entered favor if the failed state a cause of In action. the case before trial us the court ruled that plaintiff’s petition did true, not state cause of action. If rightly the trial dismissed even if de appeared fendants had stated, appellant never court. As above contention has in this court that his stated cause appellant action. In the brief made no reference to the its and the contents brief does not even of plain reveal the nature situation, action. In such a being judgment tiff’s there for the de fendants, we cannot purpose examine the for the of deter sufficiency. mining its Appellant has not asked us to do so. Bohling Barrett, (7(7., affirmed. foregoing opinion by Westitues, C., court. All
SUPPLEMENTALOPINION WESTHUES, been suggested C. It has to the writer opinion erroneously the above case held the ac court, sustaining tion the trial the motion to dismiss the action, that it failed to state a cause of a final sug from an could be taken. It has been gested page 385, 101 of Our no bear has *5 ing question. Sittner, (2d) The case of Edwards v. W. 206 S. 7), (6, recently l. c. published, holding 580 was referred to as contrary. question We have further attention following reached the conclusions. have sufficiency under the new code the of a
It is true that by a state a cause of action or defense must be raised motion to provided practice dismiss as in Sec. 62 of the code. Under the old question by presented such a a demurrer. Thus far the motion is, however, to dismiss and the demurrer are similar. There a vast ruling difference as to the on a and a effect dismiss practice. practice on a under old demurrer Under the formerly vogue, if a demurrer to a on the sustained, right a plaintiff cause of action was stated was had the force, repealed, under the statute then in but now to file an amended Hence, petition. Mo., 1939, R. A. rul- Sec. 925 R. S. Mo. S. eases, ings of plaintiff’s petition, various but not his cause Therefore, action, sustaining was dismissed of a demurrer. sustaining demurrer was not a final See Juvenal 672; Heim, (2d) App. 238 Mo. 177 S. State ex rel. Adams ficient on demurrer then the trial court was in Stockton, 123 W. S. (2d) 611. If a third duty bound was held insuf- judgment against Mo., enter a final plaintiff. 948 R. See Sec. 1939, Mo. practice, therefore, sustaining R. S. A. old a de- Under the dismissing murrer did not have the effect of the cause of action because had the as a petition. matter of law to file an amended 948, supra, repealed upon Sec’s. 925 and have been and cases based authority question those sections cease to be now us. “before may permit Under the new code a trial a plaintiff to file any number petitions justice of amended if in the. of the court requires. says, freely given so . . statute “. leave shall be requires.” when'justice Code, so page Sec 81 of the New Laws al., 378. See also Gerber v. Schutte Inv. et Co. However, may, code,
S. W. a trial court under the new determine on the first motion to dismiss that filed is insufficient and that it would be useless to leave to amend be- cause a cause of code a action could not be stated. Under the. new party right, law, does not have the as matter of as he did under the practice, file an old amended after a motion to dismiss on of failure to state a cause of action has been sustained. merely 81 of the code Sec. directs the trial court to liberal granting pleadings. leave to file 126 of the New amended 1943, page 390, provides taken from a that an judgment. code, supra, final Neither Sec. 81 or Sec. of the new any bearing have of the effect an order govern ques- In our Sec. 101 does dismiss. prejudice oper- “A dismissal with plainly tion. This section states: adjudication provides: section upon as an the merits.” The also ates involuntary juris- any “. other than one for lack of dismissal prejudice unless the improper diction or for venue shall be with specify.” court in its order for dismissal shall otherwise
537 Therefore, an sustaining order trial court to dis- a. miss on the that no adjudica- cause of action is stated in an upon as tion the merits well as a prejudice. dismissal with This is unless the specify. true trial shall otherwise The conclusion inescapable order, seems to be that such an under plain terms of statute, judgment, is a final reason-being that the statute so says. If a desires to file an amended up to him it is ask leave to do longer gives right so. law no him as a of law. If he does not file wish to an amended petition matter he has and sufficiency have the of the of his by an appellate determined court. The trial court permit an petition, by thereafter amended to be (Gerber Co., for new trial v. Inv. 194 Schutte (2d) 25, by supra); setting or thirty aside its within days (See. 118) regardless whether not a motion for new trial been has filed. hold, therefore, dismissing'a
We that an because cause of action is stated is final unless trial shall, specify. otherwise It seems to rulings,- the writer that such Sittner, v. (2d) 578, as the case of Edwards 206 S. W. c. (6, l. 580 carry procedural into code 7), long the new matters followed under practice, expressly old but were omitted and discarde code, and giving under the new that the sections of law rise to that expressly practice repealed. Therefore, have part been of the holding contrary in case of Sittner, to the Edwards syllabi 7), hereby supra, by (6, indicated disapproved. is It will cited of Appeals, example, be noted that the cases the Court as supra, Heim, expressly upon based Juvenal the sections of repealed. and now law above discussed repealing of those sections and enactment of Sec.
supra, certainly that a procedure indicate new Also desired. abolishing considered is 59 demurrers. The courts should upon procedure engraft law, this new not or rather follow carry practice expressly into the matters which were discarded. new suggested that our is in
It has been conflict Federal with Cases construing See. 41 (b) of the Federal which it is noted, however, It was the basis for See. -of our code. will be said provision Federal (b) Rule 41 Code does not contain preju as we have us now shall a dismissal such before with upon Rule, If is the Federal Sec. 101 based we must dice. to the new clause that was inserted in Sec. 101 emphasis the more all not-, (b). think in Rule 41 We is suf contained difference , following federal practice. for not justification ficient we with of this case are satisfied Upon further consideration original opinion’ opinion. supplemental This reached in our result ruling. purpose explaining for the of further our prepared has been Bohling GC., Barrett, by Westhues, foregoing opinion C., the court. All-the *7 Drayage Corpora Holtz Company, Inc.,
Mathias v. Daniel Hamm tion, Appellant. 40480. 209 S. W. 883. No. Two,
Division March 1948. Rehearing' April Overruled, Motion or to Transfer to Banc