255 Mo. 138 | Mo. | 1914
Plaintiff instituted suit in tbe circuit court of Greene county, Missouri, to recover damages for tbe death of her husband, which occurred while working in defendant’s lead and zinc mines, and is alleged to have been caused by defendant’s negligence.
During tbe January, 1909, term of said circuit court and on January 16, 1909, tbe court sustained defendant’s general demurrer to plaintiff’s amended petition, and later during said term, on February 17, 1909, tbe plaintiff declining to plead further tbe court rendered final judgment for tbe defendant. On February 22, and during said January term, plaintiff filed a motion in arrest of judgment, challenging tbe correctness of tbe court’s ruling on said demurrer. Later, during said January term, to-wit, on April 13, 1909, said motion in arrest of judgment was overruled and on said day plaintiff was granted an appeal to tbis court. On April 2, 1910, plaintiff dismissed said appeal and thereafter on tbe same date sued out a writ of error. Defendant in error has filed a motion to dismiss tbe writ of error on tbe ground tbat it was not brought within one year from tbe date of tbe rendition of tbe judgment. Tbe view tbat we take of tbe matter
OPINION.
Section 2054, Revised Statutes 1909, declares that “writs of error upon any final judgment or decision,” etc., “are writs of right,” and provides that they “shall issue of course out of the Supreme Court and courts of appeals in vacation as well as in term, subject to the regulations prescribed by law” Section 2056, Revised Statutes 1909, provides that the writ of error ‘ ‘ shall be brought within one year after the rendering of such judgment or decision, and not thereafter,” unless certain disabilities exist which are not here involved.
The question to be here determined is, when did the one-year Statute of Limitations begin to run? If it began to run on February 17,1909, the date the judgment was entered, as contended by defendant in error, then the writ of error was brought too late. If, on the other hand, the one year limitation beg'an to run April 12, 1909, the date the motion in arrest was overruled, as claimed by plaintiff in error, then the writ of error was sued out in time.
Plaintiff in error insists that the judgment was not finally rendered for the purposes of appellate review until the motion in arrest was overruled and for leading authority therefor relies upon the case of Walter v. Scofield, 167 Mo. 537, which holds that the date of the overruling of the motion for a new trial is the date the above Statute of Limitations begins to run.
In determining the force and effect of the motion in arrest in the present case, it does not become necessary to discuss at length the general tendency of the offices of a motion in arrest to become obscure, and the apparent lack of necessity of such a motion, in most instances at least, for the purposes of appellate review. That subject is discussed in the case of Stid v. Railroad, 211 Mo. 411. In passing, however, it might be said that the apparent general disuse into which a motion in arrest (in civil cases at least) has fallen, has been, no doubt, greatly influenced and largely brought about by the interpretation which has been placed upon section 2083, Revised Statutes 1909 (first enacted in 1822), providing that the Supreme Court and courts of appeal “shall examine the record and award a new trial, reverse or affirm the judgment or decision of the circuit court, or give such judgment as such court ought to have given, as to them shall seem agreeable to law,” and upon section 2081, Revised Statutes 1909 (first enacted in 1808), providing in substance that no exceptions shall be reviewed in the appellate court “except such as shall have been expressly decided by such court.” [Bateson v. Clark, 37 Mo. 31.] In interpreting these two statutes, it has been held that a distinction exists between errors appearing upon the record proper and those appearing from the other proceedings at the trial, in that errors arising from the record proper are reviewed upon appeal though no exception is saved to the trial court’s ruling thereon,
But in deciding the point here involved, our conclusion shall be controlled, solely, by the force and effect of the motion in arrest in the manner in which it is attempted to be used, under the situation developed in the present case.
It is a well-settled rule that the ruling of the trial court upon a demurrer to the petition is a matter that appears upon the face of the record proper, and no exception need be saved in the trial court to command an appellate review of the court’s action thereon. [Spears v. Bond, 79 Mo. 467; Diener v. Publishing Co., 230 Mo. 613.] It need not be raised in the trial court by motion in arrest. [Thorp v. Miller, 137 Mo. 231, l. c. 239.]
In the case of Spears v. Bond, 79 Mo. 467, in discussing the practice to be followed when a demurrer is sustained to the petition, it was said: “If plaintiff declined to amend but elected to stand on his petition then final judgment should have gone from which an appeal could have been taken. But there was no manner of necessity for a bill of exceptions in order to preserve the demurrer as it is a part of the record and ‘would keep’ without resort to any such preservatory processes.” (Italics ours.)
If then, the motion in arrest not only did not perform a necessary or useful function in the case at bar for the purpose of an appellate review but in fact performed no office in the trial court and the filing of the same for the purposes sought was improper and not recognized as the proper practice, it should not be said that it had the effect of delaying the date of the final judgment already entered and thereby be given the
It follows, therefore, that the writ of error was brought more than one year after the rendition of the final judgment in the cause and the motion to dismiss the writ of error should be sustained.
It is so ordered.
The foregoing opinion of Williams, C., is adopted as the opinion of the court.