Bennett v. Metropolis Pub. Co.
| Decision Date | 04 March 1941 |
| Docket Number | 25336 |
| Citation | 148 S.W.2d 109 |
| Parties | R. SHAD BENNETT, Appellant, v. THE METROPOLIS PUBLISHING COMPANY, a corporation, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, City of St. Louis. Hon. Robert J Kirkwood, Judge.
AFFIRMED.
The foregoing opinion of Sutton, C., is adopted as the opinion of the court. Hughes, P.J., and McCullen, J., concur. Anderson J., not sitting because not a member of the court when the case was submitted.
SUTTON
This is an action to recover damages for libel.
The petition alleges that defendant is a corporation organized and existing under and by virtue of the laws of the state of Florida, with its principal office and place of business at Miami, Florida, and engaged in the publishing business particularly in the printing, distributing, and circulation of a newspaper named and known as the Miami Daily News; that defendant published in its newspaper two articles, on July 16, 1929, charging plaintiff with plotting the murder of one Oil King, a bankrupt butcher of West Frankfort, Illinois, in order to collect life insurance plaintiff held as security for a debt, and that said newspaper containing said libelous articles was widely distributed and read throughout the city of Miami and state of Florida and the City of St. Louis and state of Missouri; and prays judgment for $ 2,250 as actual damages and $ 750 as punitive damages, aggregating $ 3,000.
The petition was filed on July 15, 1931, and a writ of summons was thereupon issued.
On June 28, 1933, the cause was dismissed for failure to prosecute.
On August 31, 1933, the order of June 28, 1933, dismissing the cause for failure to prosecute, was set aside, and the cause was reinstated on the docket, and an alias summons was ordered issued. Pursuant to this order an alias summons was duly issued.
On October 27, 1933, plaintiff filed an affidavit for an attachment and a writ of attachment was ordered to issue. Pursuant to this order a writ of attachment was duly issued.
On October 13, 1938, on oral motion of the plaintiff, the cause was removed from the dismissal docket, on which it had been placed by the clerk, and an alias summons and alias writ of attachment were ordered to issue. Pursuant to this order an alias summons and alias writ of attachment were duly issued.
On December 9, 1938, on application of the plaintiff a pluries summons and pluries writ of attachment were ordered issued. Pursuant to this order such summons and writ were duly issued.
On December 19, 1938, on application of plaintiff, writs of summons and attachment were ordered issued to the sheriff of Cole County. Pursuant to this order such writs were duly issued.
On January 5, 1939, the summons was returned non est, and the writ of attachment was returned showing it was duly executed by garnishment.
On January 11, 1939, defendant entered its appearance and filed its answer to the petition.
On January 18, 1939, plaintiff having failed to give an attachment bond, the writ of attachment was dissolved.
On January 27, 1939, by leave, defendant withdrew its, answer and filed a special demurrer to the petition, alleging as ground therefor that it appears on the face of the petition 'and the record of the proceedings in the cause that plaintiff's cause of action, if any he had, accrued more than two years before the commencement of the action, and that the action has become completely barred by the statutes of limitations of the states of Missouri and Florida, to wit, sec. 864, R. S. Mo. 1929, Mo. St. Ann., sec. 864, p. 1152, and sec. 4663 of Compiled Laws of Florida, 1927.
Both of these statutes provide that an action for libel can only be commenced within two years after the cause of action shall have accrued.
On March 15, 1939, as shown by the short transcript filed the court sustained defendant's special demurrer and dismissed plaintiff's action.
On March 20, 1939, plaintiff filed an amended petition.
On March 28, 1939, plaintiff's amended petition was, on motion of defendant, stricken from the files.
Plaintiff appeals.
Plaintiff assigns error here for the action of the court in sustaining defendant's special demurrer to the petition.
It will be observed that plaintiff's amended petition was filed five days after the dismissal of his action. Obviously, it was properly stricken. However, we do not understand that plaintiff complains of this action of the court. He does make a general assignment of error here for the striking of the petition, but does not afterwards either in his points and authorities or argument mention or refer to this assignment. The assignment must therefore be regarded as abandoned. This puts the amended petition out of the case. It is not before us for any purpose.
The only assignment of error insisted upon by plaintiff here is the sustaining of defendant's special demurrer to plaintiff's original petition. Plaintiff urges in support of this assignment that a plea of the statute of limitations as a ground for a demurrer can only be made when the statute creates an absolute bar for lapse of time without any exception. This is not the law. It is well settled that if the petition shows on its face that the bar of the statute of limitations has become complete a demurrer stating that as a ground is proper, and if the action is such that the bar may be obviated by some exception in the statute the facts stated in the petition should show such exception. In other words, the exception relieving plaintiff from the bar of the statute should be pleaded by him. Burrus v. Cook, 215 Mo. 496, 503, 114 S.W. 1065, Harvey v. Peoples Bank (Mo.), 136 S.W.2d 273, l.c. 277; Ludwig v. Scott (Mo.), 65 S.W.2d 1034, l.c. 1035; Dennig v. Meckfessel (Mo.), 303 Mo. 525, 261 S.W. 55, l.c. 58; Canada v. Daniel, 175 Mo.App. 55, 157 S.W. 1032, l.c. 63.
Plaintiff further urges that the demurrer should have been overruled because it is what is known as a speaking demurrer not authorized in our practice.
Plaintiff concedes, as he ought, that insofar as the demurrer pleads limitation in bar of plaintiff's action it is merely a special demurrer, and not a speaking demurrer, since in this respect it raises no issue of fact but purely an issue of, law. However, as pointed out and stressed by plaintiff, the demurrer goes further than this, and alleges affirmative matter. But, while this is so, it alleges no fact, not appearing on the face of the petition or in the records of the court in the cause, essential to show plaintiff's action is barred by limitation.
It is fundamental that courts are bound to take judicial notice of their own records in the same cause. Barth v. Kansas City Electric Ry. Co., 142 Mo. 535, 44 S.W. 778; State v Ulrich, 110 Mo. 350, 19 S.W. 656; Pelz V. Bollinger, 180 Mo. 252, 79 S.W. 146; State ex rel. Union Electric Light & Power Co. v. Public...
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