Angel v. City of Portageville

• Decision Date: 12 November 1912
• Parties: ANGEL v. CITY OF PORTAGEVILLE.
• Court: Missouri Court of Appeals

151 S.W. 192

168 Mo. A. 16

ANGEL v. CITY OF PORTAGEVILLE.

St. Louis Court of Appeals. Missouri.

November 12, 1912.

1. APPEAL AND ERROR (§ 501) — PRESENTATION OF GROUNDS OF REVIEW IN COURT BELOW — NECESSITY.

Unless an exception to the overruling of the unsuccessful party's motion for new trial appears of record in the bill of exceptions, all inquiry into the proceedings of the trial is closed to the appellate court; and it can only examine the record proper.

2. PLEADING (§ 418) — DEMURRER — ANSWER OVER.

Where, after the overruling of his demurrer, defendant answered over, the demurrer goes out of the record; and, under the direct provisions of Rev. St. 1909, § 1804, all exceptions except to the jurisdiction of the court over the subject-matter, and that the petition does not state a cause of action, are waived.

3. APPEAL AND ERROR (§ 270) — EXCEPTIONS — NECESSITY — MOTION IN ARREST.

Where no exception to the overruling of a motion of arrest was reserved, the appellant can take nothing on appeal by such motion.

4. APPEAL AND ERROR (§ 193) — PRESENTATION OF GROUNDS OF REVIEW IN COURT BELOW — PETITION.

That a petition does not state facts constituting a cause of action may be raised for the first time on appeal.

5. APPEAL AND ERROR (§ 232) — OBJECTIONS BELOW — PETITION.

Where, for the first time, it is urged on appeal that a petition does not state facts constituting a cause of action, that objection is available only when it fails to state any cause of action; a defectively stated cause of action being sufficient.

6. PLEADING (§ 403) — ANSWER — CURE OF DEFECTS.

Defective allegations of a petition may be supplied or cured by the answer.

Appeal from Circuit Court, New Madrid County; Henry C. Riley, Judge.

Action by Stella Angel against the City of Portageville. From a judgment for plaintiff, defendant appeals. Affirmed.

Brown & Gallivan, of New Madrid, for appellant. Ward & Collins, of Caruthersville, for respondent.

REYNOLDS, P. J.

This is an action by respondent against the city of Portageville, to recover damages in the sum of $2,000, for injuries alleged to have been sustained by plaintiff in consequence of a defective sidewalk in the defendant city. The answer, after a general denial, sets up that plaintiff, "if injured in the manner as set out in her petition, the same was the result of her own carelessness and negligence directly contributing thereto in this," and then sets up that plaintiff was going along the sidewalk in broad daylight and was crossing over the point where the hole was alleged to be with full knowledge of the alleged defect, which was open and obvious, and that she passed over it in a careless and negligent manner, "there being a safe and secure way for her to have gone, thereby endangering her own safety." After filing this answer plaintiff by leave withdrew it and filed a demurrer on the ground that the petition did not state facts sufficient to constitute a cause of action. This was overruled and defendant refiled its answer.

There was a trial before the court and a jury and a verdict for plaintiff in the sum of $750. Defendant in due time filed its motion for new trial. This was overruled. Afterwards and in due time defendant filed its motion in arrest of judgment which was also overruled. Thereupon defendant duly perfected its appeal to this court, filing its bill of exceptions in due time.

In the abstract of the record furnished by counsel for appellant are two affidavits following the certificate of the clerk of the circuit court to the transcript. In and by these affidavits affiants state that they were the attorneys who assisted the city attorney in defending this case in the circuit court; that they prepared the motion for a new trial and a motion in arrest of judgment, signed them and filed them; that they were both present in court when the motions for new trial and in arrest were acted on by the court and at the time the court overruled the motions they excepted in open court...