296 S.W. 154 | Mo. | 1927
In 1916, the Sebastian County Coal Mining Company sued the Fidelity Fuel Company and two other defendants in the Circuit Court of Jackson County, to recover certain past due installments of the rent reserved under a mining lease. To the plaintiff's petition in that case the defendant, Fidelity Fuel Company, filed an answer and a cross-petition. In the cross-petition it alleged that it had on the demised premises certain mining tools and equipments of the value of $30,000, "which the plaintiff [had] wrongfully and unlawfully seized and converted to its own use, to the damage of the defendant in the sum of $30,000." Plaintiff filed a motion to strike out the cross-petition, based on a number of grounds — among others, that it did not state facts sufficient to constitute a cause of action against plaintiff. The motion to strike out was sustained, and defendant, without asking leave to file an amended pleading, excepted to the court's ruling, and thereafter preserved its exception by a term bill. Subsequently the cause went to trial on the petition and answer, and resulted in a judgment against the defendant. Fidelity Fuel Company, in which no reference was made to its cross-action. From such judgment it prosecuted an appeal to this court, and on that appeal secured a review of the circuit court's ruling, striking out its cross-petition. In fact, the correctness of that ruling presented the principal, if not the only, question for determination on the appeal. Upon full hearing and consideration the ruling of the circuit court was approved and its judgment affirmed. [Coal Mining Company v. Fuel Company,
Appellant's position is briefly this: The motion to strike out was in substance a general demurrer to the defendant's cross-petition; no final judgment on the demurrer, disposing of the cause of action against the plaintiff attempted to be pleaded therein, was ever entered; consequently, that action is still pending, and defendant has as of course a right to file an amended pleading therein. It is true that motions to strike out pleadings of the character of the one in question here have been held to be in fact demurrers, and consequently that they should be judged of by the rules pertaining to demurrers. Stated differently, when a motion is to all intents and purposes a demurrer dispositive of the whole case on a matter of law, the rules relating to demurrers may be applied to such motion. However, the doctrine has been invoked and applied, for the most part, in determining the question of whether the trial court's ruling on such a motion is open to appellate review as a part of the record proper, or whether an exception thereto must be saved and the court's attention again called to it in a motion for a new trial. [Shohoney v. Railroad,
Respondent has moved to dismiss the appeal, on the ground that there is no provision of the statute authorizing it. The court's order refusing defendant the leave requested may, we think, be treated as a final judgment in this proceeding, within the purview of the statute.
The order and judgment of the circuit court are affirmed. All concur. *614