*1 venue, not involved substantive and Williams cases issue law. judicial of our own (taking notice reversed and involving theft Oeseh disclosing appeal the. records “4043, M. D.” —and said number dismissed —our has been cattle discharged are from further final), appellants has become conviction Cooley Westimes, CG., information. the instant proceedings by Bohling, C., is a- foregoing opinion PER CURIAM: —The judges concur. the court. All the opinion dopted as of of the Estate de bonis non Martin, Administrator Donald ay Bell Tele Appellant, v. Southwestern R phone Corporation. February 21, Two, Carpenter, Jr., appellant. and W. W. Boy Williams D. Brewster, H. Windsor and E. W. John Clausen for
Arthur S. L. Harris of counsel. respondent;
WESTHUES, C. Plaintiff filed a in the Circuit Court County Cooper seeking of $10,000 to recover damages the sum of from the defendant for alleged the wrongful Ray death of Albert respondent Martin. The corporation general filed a demurrér the plaintiff’s petition the Plaintiff which trial court sustained. declined further and was entered him, appealed. he An opinion in this case was adopted May at the Term, 1938, reversing the of the trial court and remanding the ease trial. The a filed motion for rehearing the which court sustained and the case was in January, resubmitted A by now briefed respondent, which was not briefed on the former submission, is, that the did not state the de ceased, Ray anyone left surviving him who cap inheriting, able of allege failed the names of beneficiaries for whom being the action prosecuted. It is asserted that this ' failure the petition fatally insufficient, rendered This court has will:-dispose point- of We numerous occasions. the on so ruled Lee St. Louis Public Service a recent case. quoting from See ques- identical 1169, 88 W. where this the court of what Division One tion was Note court. deceased, at the things, alleges that petition, among other “The minor, death, single unmarried was-not time of her ‘was children, born widower,- or natural and left no minor child either ’ n allege cap- adopted, or did not that she of inheriting able the descent and distribution. laws and, by -attacked, defendant at-the trial was answered general allegation, «absent defendant con- denial. Because wholly of action. tends that .fails' to state cause trial, however, objection-and exception, at the over shown n n this, evi- deceased. Since objection rule, dence exception, pe- went over tition will be as amended to conform to the evidence -considered *3 objection made, when no be if cannot invoked. But the evidence plaintiff gone in deceased had n without objection, still the rule not in referred.to could invoked be the present That capable case. deceased - inheriting- distribution, under the statute of an descent was necessary, essential fact plaintiff to be-found in order for to re- cover, plaintiff’s instructions authorized-a verdict without a finding as to fact. (Mo.), v. Delano al. 210 W. [Titus et S. 44.] An attack on a after verdict is unavailable unless the petition wholly 774, fails to state' cause of action. R. [Sec. S. 1929, Ann., 774, 1010; Mo. Stat. p. sec. Brock v. Mobile & O. Rail- Co., 918, 330 100; road (2d) Mo. 51 S. W. Colvin Gideon & N. (Mo. I. Railroad App.), 715, Co. 200 S. question, W. The 718.] therefore, petition wholly is: Does the action, fail to state a cause of allegation mentioned,? because of the absent above The answer is that it so fails. Ry. was so held in Kirk Co., v. Wabash 265 Mo. 341, 592; 177 S. W. Mining Johnson v. Dixie Development & Co. (Mo.), 1; 187 W. Troll, Admr., Light Co., v. Laclede Gas 182 Mo. 600, App. 337; Garbee, Admr., S. W. v. St. Louis-S. F. Ry. Co., 220 App. 1245, 655; Colvin v. & Gideon 290 S. N. I. Railroad supra.” Appellant, however, argues, this waived point because it wasdiot briefed on the.-first submission of this case. To agree. this we cannot may rightfully This grant court refuse to that, a rehearing on a. briefed, was rehearing not when has, granted been the case stands though on the docket as it had not been heard. parties may The then point preserved brief review, though even not mentioned on first -submission. This the- court so ruled in Anderson, Sutton v. 304, 326 Mo. 31 S. W. 1026, l. c. 1030(2). The court there (cid:127) that on agree Anderson’s further contention we with “Nor can" all rehearing points be deemed have waived Sntton must contrary hearing. to the as urged at the first This court ruled Ry. 196, 205, 715.”
early Co., 123 Mo. 27 S. W. as Danforth v. in v. Kansas reaffirmed the court en banc This was City Co., 979, (2d) 548, l. 555(17). c. Public 328 Mo. Service
Again, urges though petition was appellant that even fatally re respect defective in the mentioned the case should- he appellant support amend In permit petition. manded his appellant Wells, 1170, contention cites O’Donnell v. 323 Mo. (2d) 762; 21 S. W. Lee v. St. Louis Public 337 Mo. Service 1169, 88 W. l. c. 338. In plain each of these cases the prevailed judgment tiff had in the circuit court. The was reversed plaintiff’s fatally plain because defective. It was held tiff could amend his retrial. In this case the record shows that defendant’s demurrer was sustained and- that declined to further, judgment en ruling tered him.- If that of the trial justified court was correct, then we are not authorized to set it aside. Plaintiff given opportunity an to amend his and declined to do late, so. It is now too because the final entered harmony trial court inwas with the law and therefore cannot be re versed or set appeal. aside on Cooley is affirmed. Bohling, CC., concur. PER CURIAM:—The foregoing opinion by Westhues, C., is adopted as the opinion of the court. judges All the *4 Tony
The State Nicoletti, Appellant. Two, February 21,