Missouri Bridge & Iron Co. v. Pacific Lime & Gypsum Co.
234 S.W. 797
Mo.
1921
Check Treatment
WALKER, J.

Each of these cases grows out of the same arbitration and involves the award of the same arbitrator. In April, 1914, the parties hereto entered into a contract of arbitration, and appointed Mr. C. B. Williams as arbitrator. In December, 1915, the arbitrator signed and published his award. In January, 1916, *174 the Missouri Bridge & Iron Company filed said award in the Circuit Court of the City of Saint Louis; and on the same day said company filed its motion to confirm said award, together with the acknowledgments of the Pacific Lime & Gypsum Company and the Acme Cement Plaster Company of service of the filing of said motion to confirm. In February, 1917, the Pacific Lime & Gypsum 'Company and the Acme Cement Plaster Company filed a motion in said circuit court to strike from the files the motion of the Missouri Bridge & Iron Company to confirm said award. In June, 1917, the Circuit Court of the City of St. Louis sustained the motion to strike from the files the motion of the Missouri Bridge & Iron Company to confirm said award. In September, 1917, the Missouri Bridge & Iron Company appealed to this court from said order of the circuit court striking from the files its motion to confirm the award of said arbitrator. The foregoing .epitomize the proceedings in the first above entitled case.

In January, 1916, the Pacific Lime & Gypsum Company and the Acme Cement Plaster Company filed a motion in the Circuit Court of the City of Saint Louis to vacate the award of the arbitrator above referred to. This motion was continued from term to term until February, 1917, when it was amended by movents striking therefrom a certain allegation in regard to the insufficiency of the attestation of the award. In January, 1918, the Pacific Lime & Gypsum Company and the Acme Plaster Company filed a motion to stay proceeding, which motion was by the circuit court, in May, 1918, overruled. A few days later these two companies filed a mo-. tion to set aside the order overruling their motion to stay proceedings, which motion was in June, 1918, overruled. Thereupon, in June, 1918, the Missouri Bridge & Iron Company demurred to or moved to strike from the files the motion theretofore filed by the Pacific Lime & Gypsum Company and the Acme Cement Plaster Company to vacate the' award of said arbitrator. This demurrer was by the Circuit Court, in July, 1918, sustained, and said motion to vacate ordered stricken from the files. In June, 1919, the Pacific lame & Gypsum *175 Company and the Acme Cement Plaster Company applied to the Supreme Court and was granted a writ of error from the ruling of the Circuit Court striking their motion to vacate from the files. The foregoing epitomizes the proceedings in the second above entitled case.

Res Adjudicata. I. There is nothing in the ruling of this Court in Pacific Lime & Gypsum Company v. Missouri Bridge & Iron Company (226 S. W. 853) determinative of the matter at issue. In that case the only question involved was the sufficiency ot the petition in the nature of a bill in equity. We held that its allegations were ample to question the correctness of the arbitrator’s award. In so doing it was neither necessary or proper to pass upon the merits of the case, and it is foreign to any reasonable interpretation of our ruling to so conclude.

Pendency of Another Suit. II. The pendency of another action between the same parties hereto involving the same issue as at bar, is urged in support of the ruling of the circuit court in striking out the motion to vacate the award. It is true that the statute (Sec. 1226, E. S. 1919) prescribes as one of the grounds of demurrer the pendency of another action between the same parties for the same cause. A demurrer, however, strikes only at the face of a pleading the sufficiency of which it assails. The motion to vacate the award constitutes the pleading here^demurred to. It nowhere contains a reference, much less an allegation, concerning the pendency of another suit between these parties. So far, therefore, as regards this alleged insufficiency of the pleading to vacate, the motion to strike the same out is futile as a demurrer. A like criticism, with a proper observance of the rules of pleading, may be made against the motion, if regarded as a demurrer, to that leveled against the speaking demurrer in the Pacific Lime & Gypsum case (226 S. W. 855), which sought to assail, on its own allegations, the integrity of a pleading regardless of the facts pleaded in the latter. While a party aggrieved by an award has a *176 right to file a demurrer to a motion for a judgment on such award, the grounds for the demurrer must appear in the motion, otherwise it will not lie. If the motion does not present such grounds then the proper order is to overrule the demurrer and not to strike it from the files as was done in the case at bar. [Shores v. Bowen, 44 Mo. l. c. 400; Hinkle v. Harris, 34 Mo. App. l. c. 232.]

Appeal . III. The appeal of the Missouri Bridge & Iron Company is from the order of the circuit court sustaining a filed by the Pacific Lime & Gypsum and the Acme Cement Plaster companies to strike from the files the motion of the Missouri Bridge & Iron Company to confirm the award. This order did not result in a final disposition of the case and it was followed by no judgment having that effect, or, in fact, by any judgment. The court’s ruling does not come within the class of interlocutory orders from which appeals are authorized either under the general statutes (Sec. 1469, R. S. 1919) or the chapter on arbitration (Chap. 3, R. S. 1919). There is,' therefore, nothing for us to review. The appeal was unauthorized and it is dismissed.

Writ of Error: Refusal to Vacate. IY. A like condition of the record confronts us in the review we are asked to make of the case brought up by writ of error by the Pacific Lime & Gypsum and the Acme Cement Plaster companies. The order of the circuit court in this case was to sustain a demurrer filed

by the Missouri Bridge & Iron Company fiy striking from the files the motion of the said companies to vacate the award. This ruling partakes neither of the form or nature of a final judgment and is not such an interlocutory order as will authorize an appeal therefrom (Sec. 1469, R. S. 1919). While the statute (Sec. 616, R. S. 1919) authorizes an appeal or writ of error from an order vacating an award, such order being in the nature of a judgment, it does not authorize an appeal from an order overruling a motion — whether in the nature of a demurrer or otherwise — to vacate an award. The reason of this distinction is obvious. The sustaining of the motion *177 to vacate terminates the proceeding and partakes of the nature of a final judgment; the overruling of the motion to vacate is nothing more than an interlocutory order from which the mover may obtain relief, if error, hy preserving exception to the court’s ruling and appealing or suing out a writ of error from the judgment confirming the award. As to the latter right of review, resorted to in this case, it is horn-book law, in our practice, that in the absence of an express statute,- a writ of error will issue only to bring up a final judgment. [Sec. 1485, R. S. 1919; Iba v. Mosman, 231 Mo. 474; Trendley v. Illinois Trac. Co., 241 Mo. 73; Padgett v. Smith, 205 Mo. 122; Hodkins v. Taylor, 59 Mo. 106; Shaw v. Dinwiddie, 53 Mo. 132; Cowhick v. Jackson, 157 Mo. App. 514.] There being no final judgment, the allegation in the petition for a writ of error addressed to this court, and upon which this proceeding for a review is based, that “the order of the circuit court” overruling the motion to vacate the award “was a final order or judgment,” not being founded on fact, the issuance of the writ was unauthorized. It should, therefore, be dismissed.

It is so ordered.

All concur.