In these consolidated actions Felix Pogue and Theodore Heffron sought to recover damages from Dewey Smallen for alleged false imprisonment. The amount of damages prayed for gives this court jurisdiction. The petitions are identical except for the names of the plaintiffs. In Count I it is alleged that on February 5, 1951, in Farmington, Missouri, the defendant unlawfully, maliciously, and with intent to injure, falsely imprisoned the plaintiffs in the county jail for 24 hours by force, without reasonable cause, right or authority, and against the will of plaintiffs. Count II contained the same allegations except it is based on an alleged second false imprisonment for six hours at the same place on February 6, 1951.
The trial judge dismissed the рetitions with prejudice without stating the reason therefor, but the action was taken after the defendant had filed the following motion in each case:
“Defendant moves this Cоurt that it make and enter its order striking Count I and Count II of plaintiff’s petition herein and dismissing this cause with prejudice and for such- other and further relief as to the Court may seem meet and just in thе premises;
“Upon the Grounds That:
“1. Defendant states that the imprisonment of plaintiff was by defendant, in his capacity' as the then duly, elected, qualified and acting Sheriff of St. Francois. County, Missouri., and that thе imprisonment was by virtue of a commitment issued to him by the Circuit Court of said County and State, that said commitment was regular on its face; that plaintiff had been adjudged guilty of contempt of said Court; that said Court had jurisdiction to commit to jail for contempt; that said Court had jurisdiction of the plaintiff’s person at the time and place; all of which' are of record in the office of the Circuit Clerk for said County and State.
“2. Plaintiff’s petition wholly fails - to state a cause of action against the defendant.”
Section 509.300 (all statutory referеnces are to RSMo 1949, V.A.M.S.) provides that “The objections of failure to state a claim upon which relief can be granted or to state a legal defense to a claim may be raised by motion when these objections appear on the face of the pleadings.” Each petition states a cause of action for falsе imprisonment. The respondent in his brief does not contend otherwise. The motions to dismiss for the reason stated in paragraph 2 thereof, that the petitions fail to state а claim upon which relief can be granted, should have been overruled. Baysinger v. Hanser,
*917 Section 509.290 provides that ten separately listed objections “and other matters” may be raised by motion whether or not the same may appear from the pleadings and other papers filed in the cаuse. The matters urged in defendant’s motions are not included in the ten listed objections. If the defendant is entitled to raise these matters ¡by motion pursuant to Section 509.290, it is by virtue of the рhrase “and other matters.”
The objections specifically' authorized to be raised by motion in Section 509.-290 are not directed at the merits of the alleged claim of thе pleader. They raise only questions which challenge the pleader’s right to proceed in the manner proposed because of his incapacity to sue, bеcause of jurisdiction or venue reasons, or because of procedural irregularities. This court has held that the term “and other matters” as used in Section 509.290 includes the defense of res judicata. Hamilton v. Linn,
Reference to defendant’s motions discloses that the matters raised in paragraph 1 are not objeсtions which would dispose of an action on uncontroverted facts, but the motions contain allegations of facts which controvert the merits of the claim of the plаintiff. This is not the purpose of the motion provided for in Section 509.290. Finch v. Edwards,
The principal сontention in defendant’s brief is that the trial court could take judicial notice of the matters raised in paragraph 1 of the motions. Assuming this could be done, it would be for two possible purposes: to notice judicially the matters set out as constituting evidence of a defense to the' suits on the merits, or to notice judicially the matters and incorporate'them as a part of the petitions in determining if they stated a cause of action. Neither purpose is proper under the circumstances in this case.
The doctrine of judicial notice, ‘when applied' to evidence, “like many presumptions entertained by- the courts, is but a rule of evidence”, Timson v. Manufacturers’ Coal & Coke Co.,
A court will judicially notice certain facts in determinng whether a certain pleading, or a certain averment in a pleading, or a greater particularity of an aver.ment, is necessary. Garth v. Kansas City El. Ry. Co.,
What was attempted by defendant in these cases is thе equivalent of filing motions for summary judgment. This device is employed in the federal courts and in some states to give speedy judgment where the plaintiff’s claim or defendant’s defensе is clearly without merit. Regardless of how desirable such a procedure may be, its use is not authorized in Missouri. When the present code of civil procedure was proposed to the Legislature it contained procedural provisions authorizing the use of the motion for summary judgment substantially in the same manner as provided for in Federal Rules of Civil Procedure, Rule 56, 28 U.S.C.A. However, during the legislative process these provisions of the proposed code were removed from the bill and they do not appear in the present code. Thus, the Legislature has indicated its disapproval of the use of the motion for summary judgment. See Atkinson, Missouri’s New Civil Procedure, 10 Mo.Law Review 47 at pagе 63.
These cases are distinguished from the consolidated cases of Pogue v. Swink (Heffron v. Swink), Mo.,
The judgment of the trial court in each case is reversed and both causes are remanded to the trial court with directions to permit the defendant, if he so desires, to file proper motions or responsive pleadings within such reasonable time as the trial court shall direct.
PER CURIAM.
The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court.
All concur.