Warren v. Badger Lead & Zinc Co.
164 S.W. 206
Mo.
1914
Check Treatment
WILLIAMS, C.

Plаintiff 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 errоr. 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 *142renders it unnecessary to set out furthеr the matters concerning the merits of the controversy below.

OPINION.

Writs of Error: After Judgment on Demurrer: Motion in Arrest. It appears from the foregoing statement that the writ of error was brought more than one year after thе final judgment was entered in the case but within one year from the date of the overruling of the motion in arrest of judgment.

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 оn 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 wаs 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 аnd 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. *143Defendаnt in error insists that in the present case the motion in arrest performed no necessary or useful function for the purpose of a review by appeal or writ of error, and therefore should not be permitted to. affect the date of the rendition of the final judgment. Plaintiff in error, replying to this,' admits that the filing of the motion in arrest in the case at bar was not necessary in order to have this court review the trial court’s аction in sustaining said demurrer but insists that so long as the motion in arrest was pending the “whole matter rested within the breast of the court,” and during said time the judgment might be “arrested, modified or set aside.” For that reason it is urged that the judgment was not final, for the purposes of appellate review', until the motion in arrest was overruled. It will he noticed from the statement of facts the motion in arrest was, in fact, overruled at the same term at which the judgment was entered. If the logic of plaintiff in this regard be correct, then, with equal security, it could be said that the judgment would not be a final judgment for the purposes of appellate review until after the end of thе term at which it was rendered, for the reason that during said, term the judgment remains, so to speak, “in the breast, of the court,” and during the term can he set aside of the court’s own motion or initiative. [Rottmann v. Schmucker, 94 Mo. 139.] This line оf argument leads to an absurdity, for if the judgment was not final until the term of court had ended, then an appeal from a final judgment- (which must he taken at the term the judgment is rendered) could never he taken. From this reductio ad absurdum it follows that the fact that the judgment in the trial court has not passed the period within which it might be set aside by action of the trial court is not a true or sufficient test in determining whether the judgment is finally rendered for the purposes of appellate review.

*144In the case of Walter v. Scofield, supra, it appears that the motion for new trial was not only a proper motion in said case but was also a necessary motion to build the case below for appellate review. If the motion ‍‌​​​‌‌‌​​‌‌‌‌​‌​​‌‌​​​‌‌​‌‌​‌​‌​‌​‌‌​​​‌​​‌​​‌‌​‍in arrest of judgment, in the present case, filled a like office it should no doubt produce the same effect, e. g., affect the date of the rendition оf the final judgment for the purposes of appellate review.

In determining the force and effect of the motion in arrest in the present case, it does not become necessary to discuss at length thе 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, hаs 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 apрeal “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 dеcided 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, *145but that errors arising from рroceedings at the trial other than that shown by record proper must be brought to the trial court’s attention by motion for new trial and exception saved to the overruling of same. And since the primary function of the motion in arrest was to raise error appearing upon the face of the record proper (McCarty v. O’Bryan, 137 Mo. 584), it becomes apparent that under such circumstances and perhaps undеr most circumstances the motion in arrest has become unessential for the purpose of appellate review in civil cases. This result has, no doubt, to some extent been influenced also by the provisions of section 1804, Revised Statutes 1909 (first enacted in 1849), providing that certain objections to the petition (except as to the court’s jurisdiction over the subject-matter and that the petition does not statе facts sufficient to constitute a cause of action) shall be deemed to have been waived unless raised by demurrer or answer. Whether this situation also applies to the practice in criminal cаses, notwithstanding section 5286, Revised Statutes 1909, need not be here discussed.

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.]

*146A motion in arrest is of common law origin (5 Am. & Eng. Ency. Law, 502), and its nse in civil cases in this State, there being no statutory enactment changing, enlarging or defining its scope and purpose in civil cases, is neсessarily no greater than was its usé and function in the practice at common law. [R. S. 1909, sec. 8047.] Referring to the practice at common law we find that the filing of a motion in arrest of judgment was not only not necessary in order, to raise the error committed by the court in ruling on a demurrer but in fact such practice was not permissible. The trial court would not entertain a motion in arrest to review its solemn decision on the question of law involved in passing upon a demurrer. [2 Tidd’s Practice, 918.] In the early case of Freeman v. Camden, 7 Mo. 298, Scott, J., writing on this subject said: “After the court has deliberately expressed its judgment upon demurrer the same matter is nеver allowed to be urged in arrest of judgment.”

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 оf 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 practiсe, 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 *147power to toll the one-year Statute of Limitations within which time the writ of error must he brought.

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.

Roy, G., concurs. PER CURIAM.

The foregoing opinion of Williams, C., is adopted as the opinion of the court.

Walker, P. J., and Brown, J., concur; Faris, J., dissents.