*1 Wiley Next Friend, Appellant, Her Effie Williams, Williams, , Burlington Company. Chicago 6 S. & (2d)W. 929. Banc, May 18,
Court en Bishop & appellant. J. B. Weinbrenner and Claiborne for *2 Douglas H. J. Nelson and respondent. W. Robert for *3 phase of this P. J. One GRAVES', plaintiff shows that 1922; 1, September June 6, herein 1922, a petition filed defendant quash depositions to take a motion to notice case, filed the for out; September fully set that on 8th therein reasons there was a motion, and same hearing upon said the was overruled. The fore- history ease, for of the the real is mere case now going before us be- filing petition. of an amended petition with the This gins was filed an action the wife for May 5, alleged It is negligent against husband, present and was her killing of respondent, and corporate and one defendants —one individual. two other original separate refiled its 2.1st defendant May On answer to this plaintiff 10th petition. November amended dismissed as to two ease, and left her as the of the defendants sole defendant, Burlington & n Company, Chicago, the respondent in dismissing two After now. defendants from ease the case, motion; following plaintiff filed the then plaintiff the above-entitled now the cause “Comes and first hav- court, moves the given leave of court to ing strike been from the Burlington & Quincy Chicago, of the Railroad Company, following allegation which herein, appears para- defendant 22 beginning page with line. 2 thereof, graph three and conclud- consisting 4, of the last 11 13 page with line lines on page 2,
49 (all page and the first lines page appears 3, type). in black-face above allegation this motion that for is said ground immaterial,
“The irrelevant the cause of action incompetent peti- and stated permit it to continue said answer will tion, do this and irreparable injury produce and plaintiff miscarriage justice.” an overruled, plaintiff in open court This declined to judgment was entered for the plead further, and defendant plead of the pleadings and this failure further. judgment such for to set aside new
Motions arrest said) (it is filed overruled. A were being objected to within foregoing as record. There is an by respondent. of record can will abstract We additional make position later. respondent’s clear below) (plaintiff it is
By following said that the appellant is the by the attacked motion to out, of the answer strike supra: says answering, this “3. Further defendant that the Effie plaintiff, minor, age years, to-wit, over the of fourteen Williams, age is a Missouri, and a citizen of the State of years, and a sixteen resident Missouri; on, to-wit, June County, Iron C. A. Charl- Williams, duly presented ton, application the father said Effie an probate County, Missouri, said Iron appoint- court Charlton, guardian A.- himself, said C. and curator ment person of said Effie Avhieh Williams, applica- and estate said signed, also and in requested Effie Williams the same also tion said guardian appointment father as of her said curator afore- probate appointed said; thereupon said said A. C. Charl- person guardian and curator estate Effie ton requiring order the said A. C. Charlton Williams *4 $5,500 performance for faithful in sum of his give bond of curator, which guardian said and said A. C. duties as such bond duly approved by and which said bond was duly executed Charlton and probate court filed. said day June, 7th of 1922. thereafter, and said A. C.
“That, of guardian Williams, and curator as Charlton, as aforesaid Effie presented petition writing, represent- court duly probate to said Elva Williams was the husband one of said to said court Williams, Elva Williams was killed in a and that said collision Effie riding Elva Williams Avas an upon which said and a truck between Chicago, Burlington & engine belonging defendant, of the tracks the defendant St. Louis Company, or about Railway Company, Tyler Main Bridge and Terminal Merchants’ May peti- Louis, Missouri, streets, city of Said in the St. of alleges that the death said Elva and states Williams tion further defendants; part said that said negligence on the of of the result to pay compromise defendants had offered all of claims for the of said Elva Williams petition death the sum of $2750. Said further guardian A. Charlton, recited that said C. and curator as afore- carefully investigated said, ‘had facts in connection with the death Williams, of opinion the said Elva and that it would be to the best interests of said accept Effie Williams to said offer.’ Said petition prays probate further the said permit said A. C. guardian Charlton, aforesaid, and curator as to settle the said claim for said sum and to said release defendants from said claim. day “That probate on said 7th of June, 1922, said after hearing duly evidence, authorizing order the said A. C. Charlton, guardian aforesaid, curator to settle said claim as prayed petition. for in said June, day
“That on 7th said this defendant and the de- Bridge fendant St. Railway Louis Merchants’ Terminal Company duly paid Charlton, guardian to A. C. curator, as aforesaid, the thereupon sum $2750, Charlton, guardian said A. C. duly signed aforesaid, curator and delivered to the defendants copy release, attached, of which is herewith and marked Exhibit releasing A, said defendants from demands and causes action damages penalty or which accrued to said Williams, by Effie rea- Williams, whereby son of the death the said Elva cause if action, had, any, said Effie Williams has fully been satisfied discharged liability.” this defendant has been of all leaving foregoing case, disposition (1) outlines the for our plaintiffs’ objections record, (2) abstract the matters con- respondent’s abstract, (3) tained additional ap- the merits of pellant’s contention, shape is in the record get to such conten- tion. very doorway
I. At the this case lies as to whether by plaintiff or not the motion filed to strike out a stated only strike, answer is strict or is it, effect substance, a demurrer to the. or a defense answer ? Htated was attacked and which
appellant says have set plea fact a of settlement and out, release of the cause supra, is petition. plea Not is it a action stated of settlement action, cause of settlement and al- release release the direction and leged been made under orders to have County. words, In other Court Iron strikes Probate pleads to the action. complete pleaded at a release defense *5 complains Respondent of certain words as aforesaid. settlement printed in the abstract. parenthesis These words in the motion type)” evidently in black-face are no “(all appears above hardly original and we think counsel intended aforesaid, to evidencing manner be understood as in the their use original part of motion. For as a their consideration words .the these they could serve now hand no useful and we point purpose, they printed if were not so at all. proceed as shall dignity position is this motion rise to the pleaded they defense to the answer? to this Had as-
a demurrer for the motion that such signed as a reason of the answer any plead plaintiff’s sufficient to constitute facts defense to to failed alleged say this that to strike was in action, we would law pleaded that fact, defense. In in fact a demurrer aside from paragraph 1 answer, it general denial is the de- The defense in the case. the answer at- fense appointment Wiley Williams as next friend on tacked appointment application ground that for the a next friend had by Williams, but signed signed Effie her name had been by not been bringing suit. attorney matter, by on a motion present heard this filed The trial court permitted and directed Effie respondent, sign Williams to proceed had filed,, it been application first done in the first quash a is motion to notice to depositions, This take instance. supra.
which we have mentioned original that the defendant refiled its It will be recollected petition, but the matter contained in its paragraph to the amended by ruling, supra, court’s refiling 2 had eliminated before the been ruling the defendant filed its On this term bill of the answer. of ex- appealing repeat now. So it is not we ceptions, but there is by paragraph 1 (1) general denial, as shown now paragraph 3 (2) pleaded in defense as this plainly paragraphed motion. The answer struck at and 3. figures 1, 2, grounds thing that troubles us is the stated
The first the motion. brevity, requote ground Ignoring it thus: “The this motion incompetent allegation immaterial, and irrelevant is that petition, permit and that the cause action stated will an irreparable injury do this continue said answer justice.” miscarriage produce a Evidently language attacking plead- usual used' in is not the ing demurrer. precise thing troubles us is the rule for determin- second
ing a motion to shall whether or not strike be taken and considered given Many cases plead- as a demurrer. of our name to a determine its character —that necessarily does not its character language. In Shohoney will its contents and be determined *6 52 revio,w Judge Latum,
Railroad, 231 l. c. 142 after to a of the Mo. page 153 law, case said: pursued we tlie matter far. is obvious the
"But have from if cases promulgated reviewed that motion to views strike essentially dispositive if demurrer, it could not out not be of exception' it, ruling case, with the to thereon and with the bringing alleged trial forward the for a new error for motion preserved of final be consideration must a bill appeal. considered on exceptions or it cannot be The motion in hand up demurrer; to standard go it did to does not measure not disposed could not have been plea, ruling the ease on a the whole some the matter the motion not on was matter simply matter of purely and motion. Our demurrer but conclusion point if to rule on as we wfere learned counsel for is that de- exception. out a new wish, would carve we fendant we, exceptions multiplying practice would "By unsettle the rule, then, part that the motion to it. We strike out confuse of the appearing in here, any. because not replication is not bill excep- the motion a new trial is tions, and because like fix. Not to appear thing (Idem the same not to are esl non -exist and esse et non apparere).” reaching conclusion, he contravened pre two of his own
In rulings, judgment, in our and he practically says vious so in Sho honey’s Ewing case. See comment and Hubbard cases near of 231 page Missouri. the bottom practically Those cases a so-called motion to strike could not ruled serve the of a judge promptly learned demurrer. The corrected opinions his own stated, supra, As there were at therein. least two defenses de to (1) when this motion fendant’s strike was general filed: fully question which raised the denial, liability, (2) plea paragraph 3 which was settlement release of the cause eye upon With this status of record, action. apply let us finally Shohoney’s rule, announced case. really The case law, except participating no new one therein, because one sitting (the present judge writer) and another concurred agreed Personally we to our the result. brother’s final conclusion here, rule we have involved did not subscribe reasoning upon another discussed in the later opinion. pei’haps We should have framed our concurrence different ly. However, now the rule announced J., P. Smith, Benz, Asphalt App. Co. 81 Mo. Paving in Barber l. c. 248 seq., et final our learned conclusions Brother Lamm, 231 Mo. 153, quoted supra, proper l. c. announce the rule of determining dignity rises to the whether strike of' a demurrer, or ‘‘ ruling upon not. If the strike such that it is dis- positive ease,” suggested Judge Lamm, or as ruled supra, motion struck whole J., P. at the it Smith, ruling might in fact a demurrer. A be said to be thereon could be Judge ruling Lamm. of the case” as “dispositive dispose case, it to strike does not matters not this motion (as was) ruling might If way be. overruled the case defenses, of, were disposed because there left two whereas *7 is not only one had the motion been have been left defense there would plaintiff had the secured de words, sustained. In other even she try. by a lawsuit left for her to No rul motion, sired was her there dispose finally On upon of the ease. this situa the motion would App. J., Benz, l. Paving 248-249, Smiti-t, in 81 Mo. c. tion, P. Co.
says: where, only go and order to here,
“But thereon a allegations remaining of of those the the untouched ruling issues, then the the is matter tender one or more subject only, exception is the review unless the defend- not duly excepted exceptions only he not ant’s bill of shows thereto trial, subsequently, assigned but that his motion for a new he in duly excepted ruling grounds such as one of therefor and to the the overruling action of the court in same.” Shohoney approval supra. case,
This our in the Measured met this status of up rule this motion to strike did not de- measure murrer. go very
But we feel that and rule that we must further, any language requoted above, precludes ruling to tlie demurrer, although effect that in labeled motion svbsiunee it is language to answer. is strike out one defense of an The used .so precludes foreign language demurrer, to this of itself of a us not saying from it a demurrer and therefore need in effect is exceptions. be preserved a bill of motion for new I.L views, supra, brings ap- Our to critical status this us case, peal, plaintiff appellant so far as is concerned. The although married, Louis, this appeal, here on brought in St. going years age. Before to Iron just over sixteen husband, her bury directed counsel
County to her she agent brought. A claim of de- bjvfog suit, and it was corpse County, Iron and the the widow followed fendant diligence broúght about facts Apparently his burial. place of answer, supra. odor of the trans- 3 of pleaded over-zealous, act of ivas the of the rose. not that is action Louis off result of the St. head agent, unscrupulous, claim (the plaintiff father of may assisted have been He lawsuit. Probate Court plaintiff in the guardian curator and appointed County) himself, 'Wiley Iron in a contest between Williams (father husband) plaintiff of the deceased the next friend repeat instant So, again, case. that the transaction does not in shape bear the odor of rose. We wish it for were full con- sideration. shape,
But is in this unfortunate the record us. before exceptions ruling There is no bill of in the all. trial court her motion out was not to strike called the attention the trial court motion for a new trial. After filing was entered the record shows the of a trial,
for such printed new a document record, in the not men- so-called ruling plaintiff’s tion the out. motion to strike This motion new us, it preserved trial is not before was never because exceptions. Appellant bill of exceptions any no has bill kind proper here. We have the record us. cannot before We review ruling upon out, the motion to strike because neither a exceptions. motion for new trial nor a bill of We cannot review the complaints for a judg- as to the motions new trial and in arrest of *8 ment, record) shown been-filed, (by to have shown likewise preserved by not to exceptions. have been a bill The record which we can consider we discuss later. Appellant
III. judgment abstract, not set out the in her conception By but states her of the substance. additional abstract respondent judgment may sets out the in full. we That have the complete give record proper we such judgment, before us as follows:
“Monday, 10, November by assigned “It is ordered the court that this be cause to Division Number 1. day plaintiff by by
“Now at this comes the her next friend and attorney, upon her motion it ordered the court that hereby defendants, cause be same is dismissed as to and the St. Bridge Association, corpora- Louis Merchants Terminal Railroad Wittrock; plaintiff tion, and thereupon William F. leave of court answer, reply first had withdraws her to the obtained Burlington Chicago, Quincy & Company, defendant cor- Railroad poration, herein, plaintiff by heretofore filed leave of court first parts had obtained files motion to strike out Burlington Chicago, Company, & Quincy defendant a cor- having duly poration, and the court heard and considered same hereby overruled; said motion be the same is doth order that declining thereupon plaintiff open plead further, it is judgment final ordered court that be rendered the plead- C, Q. ings in B. & favor of the defendant adjudged it is considered and “Wherefore, by the court that the behalf, plaintiff nothing her suit in this take that the defendant Burlington & Eailroad Chicago, Company, a corporation, be go day discharged, plaintiff without hence recover of the and her friend, suit, costs of next have therefor execution.” petition We have stated the character of the and answer, and those judgment, supra, proper. with the constitute record The effect ruling, supra, strike, our is that it never chal- lenged pleaded sufficiency facts 3 of the to state valid defense. The court could not have passed upon question, presented by because not the motion to open question upon It is strike. therefore face the record proper. We mean that no court has it. determined The statute re- by respondent upon lied Eevised Statutes Section which reads:
“If matter, plain- the answer contain a statement of new and the reply tiff fail to or demur within prescribed by thereto the time judgment or shall rule order the defendant have such as he upon statement; require is entitled to and if it, such the case writ inquiry damages may issue.” says if Note this the answer new matter, statute contains then the either, reply demur, failing judgment shall or or to do shall go in favor of Tt defendant. first occurred to us, that such new (being part proper) matter the record showed its face that pleaded constituted no petition, defense to the action we say could that the entered was erroneous on the face of the proper, because, should be reversed. We wish so, it were frank, doings to be we do not like the this case. go (See. 1236) meaning
We must to this statute for the of “new Tf as used the law. “new matter” meant matter matter/’ pleaded, constituted a valid defense action then might pleaded there was no such new matter and a *9 judgment proper thereon would entered not be on the record. We proper could in this that the case shows that the Circuit City through Court of Louis, appointed of St. a next friend plaintiff by it, acquired jurisdiction action, over the cause and no proceeding other court judgment thereafter could its effect right of proceed judgment. the circuit court to to final But Section 1236, supra, clearly shows that new matter referred to therein may subject be new matter which demurrer, would be the i. e. “new might matter” which in law not state defense. This is made clear reply because the failure to either or demur entitles the defendant judgment. reply, Plaintiff did not and what she not did file was contemplate sufficiency The statute seems to demurrer. 56
the new matter must be tested demurrer in the nisi, not on the face of the record here.
Under old statute much 1236, like Section supra, early in an case this of “new matter” up, answer came and in Sauborin, Moore l. Mo. c. Fagg, J., whereat said: v. upon “We are not called very closely scrutinize the averment of this new matter. There nowas demurrer it. object evi dently up was to compromise set such a settlement or whole matter, parties made between the appearance the time of their justice, before the as amounted ato release the defendant from liability prosecution on account of the liad been institutéd against plaintiff. This, true, awas defense to action. With reply, out a upon it stood confessed the record and de entitled the judgment.” fendant also v. Rowell, App. Bird 180 Mo. l. [See c. and Ennis Hogan, Mo. 513.] (Sec. 1236, supra) contemplate statute legal seems to that the allegations effect of the should demurrer, be determined failure so to do entitles the defendant to judgment, unless issue is by reply. way, in us, by We see no the state of the record before judgment entered can be disturbed. is therefore ad- judged that the entered nisi be affirmed.
PER opinion CURIAM:—The P. Graves, J., in Division One of adopted by Ragland, J., the Court en Banc. concurs J., concurs; separate Walker, White, opinion; C. Gantt, Blair and JJ., J., opinion concur in Graves, the result of the P. and concur separate J.; Atwood, concurring opinion Ragland, J., dis- sents. RAGLAND, J., (concurring). opinion am of the that the third —I good not the answer stales a plaintiff’s defense to action, any
cause of but that it disclose encroachment on the jurisdiction possessed. which the circuit court I am of the further opinion that the record does not criticism warrant of the defendant’s department. I merely claim For reasons concur these in the af judgment. Blair, White, JJ., firmance Gantt and concur in these views.