74 S.W. 1116 (Mo.App. 1903), Harris v. Letner

• Judge: GOODE, J. Bland, P. J., and Reyburn, J., concur.
• Citation: 74 S.W. 1116,101 Mo.App. 689
• Date: 28 April 1903
• Docket Number: .
• Court: Court of Appeal of Missouri (US)
• Parties: J. C. HARRIS, Appellant, v. R. E. LETNER, Respondent

Page 1116

74 S.W. 1116 (Mo.App. 1903)

101 Mo.App. 689

J. C. HARRIS, Appellant,

v.

R. E. LETNER, Respondent

Court of Appeals of Missouri, St. Louis

April 28, 1903

Appeal from Pemiscot Circuit Court.--Hon. H. C. Riley, Judge.

AFFIRMED.

Judgment affirmed.

Faris & Oliver for appellant.

(1) In answer to reasons numbered 4, 5 and 9, in respondent's motion to dismiss, it is conceded by appellant that no appeal can be taken by the plaintiff from a judgment rendered on a plea in abatement solely. In this case, however, there was a judgment both on the plea in abatement and the merits. The record shows that both a plea in abatement and an answer to the merits was filed by defendant. If permission had been granted by the court to amend the transcript of the justice, this would have shown it. Respondent's attorneys in presenting and arguing the motion, conceded these facts, and will not insist nor urge these reasons as grounds for sustaining the trial court. Therefore, these three reasons should be disregarded and stricken out of the motion.

Hawkins & Hawkins for respondent.

(1) No affidavit or amended affidavit was filed before the motion to dismiss was determined, nor was there any offer to amend as the law requires, nor was the costs paid. R. S. 1899, sec. 4072. (2) This was an appeal from a judgment in the justice court upon a trial had upon the plea in abatement, as to the defendant, Letner. Judgment was rendered against W. J. Lewis both on the attachment and on the merits, no interplea being filed in behalf of W. J. Lewis, plaintiff having dismissed in the circuit court as to Lewis. If he was in court or not, as the case may be, places the case in the circuit court upon an appeal from the judgment upon the plea in abatement in the case against Letner. Counsel for appellant admit that an appeal can not be taken from a judgment rendered on a plea in abatement. The motion should be sustained because plaintiff had voluntarily dismissed as to Lewis, and that left nothing before the court save and except the appeal on the plea in abatement in case against Letner. Counsel for respondent contend that Lewis was never in the circuit court. Judgment had been rendered against him in the lower court, both on the attachment and on the merits, and he had not appealed; but if he was in court when plaintiff dismissed as to Lewis, then the case was the attempted appeal on the Letner plea in abatement, and the court properly sustained the motion. R. S. 1899, sec. 407; Laws 1891, page 45; 25 Mo.App. 310; 56 Mo.App. 485; 57 Mo.App. 33; 58 Mo.App. 214; 74 Mo.App. 292; 80 Mo.App. 200.

GOODE, J. Bland, P....