51 S.W. 825 (Mo. 1899), Ricketts v. Hart
|Citation:||51 S.W. 825, 150 Mo. 64|
|Opinion Judge:||Per Curiam.|
|Party Name:||Ricketts, Appellant, v. Hart et al|
|Attorney:||O. D. Jones for appellant. C. D. Stewart, H. T. Botts and L. F. Cottey for respondents.|
|Judge Panel:||Gantt, C. J., Sherwood, Burgess, Robinson, Brace, Marshall and Valliant, JJ., concurring.|
|Case Date:||May 30, 1899|
|Court:||Supreme Court of Missouri|
Transferred from St. Louis Court of Appeals.
Remanded (with directions).
(1) In February, 1899, a rehearing was granted in this case with order to put it on April term docket. On March 2, 1899, appellant served copy of abstract of the record on the respondents; it is filed and trial asked on it. Appellant has the right to file an abstract here under the statute and the rules of the court. The clause of the abstract showing the filing of the bill of exceptions is made full. This is the only change made. (2) The defendants objected merely to the introduction of evidence on the trial, after filing answers and replies, and the issues were all made. The petition aided by answers and verdict is good as it is. Weaver v. Harlan, 48 Mo.App. 319; Lycett v. Wolf, 45 Mo.App. 489; McDermott v. Claas, 104 Mo. 14; Young v. Sheckle, 103 Mo. 324. It is aided by answers and verdict. Keen v. Munger, 52 Mo.App. 661; Beckman v. Ins. Co., 49 Mo.App. 604; Grace v. Nesbit, 109 Mo. 9; Allen v. Chouteau, 102 Mo. 309.
(1) Appellants' abstract does not show that leave was taken to file bill of exceptions, nor does it show that a bill of exceptions was filed. Where an appeal is taken by filing in the appellate court a copy of the judgment and the order granting the appeal, accompanied by an abstract of the record, as in this case, the abstract should not only contain the record evidence of the filing of the bill of exceptions, but if the bill be filed out of term, it should also contain a copy of the order granting leave to file it in vacation. If the assignments pertain to matters of exceptions also, or to such matters only, as in this case, then the abstract must show affirmatively that the bill of exceptions was properly filed. The record entry of the filing of the bill of exceptions must be set forth in such abstract. Hohstadt v. Daggs, 49 Mo.App. 157; Mason v. Pennington, 53 Mo.App. 118; Wesby v. Bowers, 58 Mo.App. 419; Hanauer v. Bradley, 64 Mo.App. 661; Hostetter v. Emerson, 64 Mo.App. 672. (2) There must be an entry of record to make a bill of exceptions a part of the record. The further objection is urged to the consideration of the purported bill of exceptions, that there is no record entry showing that the bill was filed at any time. There is nothing in appellants' abstract of the record proper showing that leave was granted to file bill of exceptions or that it was ever filed. Taylor v. Scott, 26 Mo.App. 249; Williams v. Williams, 26 Mo.App. 409; State v. Wilson, 44 Mo.App. 136; McGrew v. Foster, 66 Mo. 30; Pope v. Thompson, 66 Mo. 661; Lumber Co. v. Howard, 76 Mo. 517; Dinwiddie v. Jacobs, 82 Mo. 195; LaFollette v. Thompson, 83 Mo. 199; Roesler v. Bank, 88 Mo. 565; State v. Rolley, 135 Mo. 677. Recitals in the bill of exceptions will not supply the record proper. Walser v. Wear, 128 Mo. 652. (3) The majority opinion of the St. Louis Court of Appeals holds that plaintiff's petition does not state facts sufficient to constitute a cause of action. It finally holds, however, that: "The petition and reply taken together make up the plaintiff's paper case, and are sufficient in our judgment to support a judgment after verdict." The holding is that, "a necessary averment omitted from the petition" may be supplied by the reply. We beg to insist that such ruling is radically wrong. A plaintiff can not abandon his petition and recover upon a cause of action stated in his reply for the first time. The petition must state the plaintiff's cause of action. R. S. 1889, sec. 2039. It is no part of the office of the reply to state a cause of action. R. S. 1889, sec. 2052. In Crawford v. Spencer, 36 Mo.App. 78, it is said: "A party must, under our system of pleading, recover upon the cause of action stated in his petition, and he can not recover upon a cause of action stated in his reply." In Mahoney v. Reed, 40 Mo.App. 99, it is said: "But an allegation in the reply which ought to have been made in the petition is not sufficient and does not cure the defect." See, also, McMahill v. Jenkins, 69 Mo.App. 279; Stepp v. Livingston, 72 Mo.App. 175; Lanitz v. King, 93 Mo. 513; Hill v. Mining Co., 119 Mo. 30; Webb v. Bidwell, 15 Minn. 479; Durbin v. Fisk, 16 Ohio St. 538; Gould's Pleading, sec. 8; Thrush v. Cameron, 21 Mo.App. 397; Newham v. Kenton, 79 Mo. 385.
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