Beardslee v. Morgner

• Decision Date: 31 October 1880
• Citation: 73 Mo. 22
• Parties: BEARDSLEE v. MORGNER, Appellant.
• Court: Missouri Supreme Court

73 Mo. 22

BEARDSLEE

v.MORGNER, Appellant.

Supreme Court of Missouri.

October Term, 1880.

Appeal from St. Louis Court of Appeals.

REVERSED.

McDearmon & Gauss and Hinman & Lewis for appellant.Kingsbury & Bruere for respondents.

I.

SHERWOOD, C. J.

There were six amended petitions filed in this cause, demurrers having proved successful as to six petitions, one original and five amended petitions. After the third amended petition had been adjudged insufficient on demurrer, defendant filed his motion to strike the fourth amended petition from the files, and to render a final judgment in his favor. This motion was unsuccessful, and exceptions were saved. Plaintiffs' fourth and fifth amended petitions were likewise held insufficient on demurrer, but their sixth amended petition was held sufficient, and thereupon defendant filed his answer, on which the trial was had.

The statute provides: “If a third petition * * be filed and adjudged insufficient, as above, or the whole or some part thereof be stricken out, the party filing such pleading shall pay treble costs, and no further petition * * shall be filed, but judgment shall be rendered.” R. S. 1879, § 3540. This language cannot be regarded as anything short of mandatory, since the section just quoted contains not only an express prohibition against allowing any other petitions to be filed, but emphasizes that prohibition by commanding that “““ judgment shall be rendered.” This language is altogether too plain for construction. It leaves no discretion to the court, and requires no motion to bring the power of the court into active exercise. Upon the occurrence of a third defective petition, the jurisdiction of the court to receive a further petition is cut off, and its only remaining power in the premises is to obey the behest of the statute, and render judgment. This view is in accord with that heretofore taken by this court in reference to the abating of suits unless re on or before the third term after the suggestion of death, etc., the statute requiring that in case there be no review on or before the third term after suggestion of death, the suit shall abate. R. S. 1879, § 3668. And we held that after the time limited by statute for renewing the suit had expired, a sci. fa. issued for the purpose of such review was improvidently issued, and the suit properly dismissed; because the writ being issued without authority of law, the plaintiff had acquired no rights thereunder; and that “no provisions are made for extending the time so limited under any circumstances.” Rutherford v. Williams, 62 Mo. 252. It will be readily observed that the language of the section under discussion is more emphatic than the section commented on in the case cited.

And it will not do to say that defendant, by answering, has abandoned or relinquished any rights which the statute accords to a thrice successful demurrant. In the case at bar the defendant had done more than could have been legitimately asked at his hands; ...