Bonfils v. Martin's Food Service Company

• Decision Date: 02 July 1923
• Citation: 253 S.W. 982,299 Mo. 500
• Parties: F. G. BONFILS v. MARTIN'S FOOD SERVICE COMPANY, Appellant
• Court: Missouri Supreme Court

253 S.W. 982

299 Mo. 500

F. G. BONFILS v. MARTIN'S FOOD SERVICE COMPANY, Appellant

Supreme Court of Missouri

July 2, 1923

Appeal from Jackson Circuit Court. -- Hon. Allen C. Southern, Judge.

Appeal dismissed.

Wilkinson Wilkinson & Dabbs for appellant.

The court had no jurisdiction to hear and determine this cause as the original petition never stated a cause of action. Ellsworth v. Wilhelm, 186 S.W. 1128; Sec. 2924, R S. 1919.

Frank M. Lowe for respondent.

No appeal was taken from the judgment on the merits of the case. The only exception made was to the action of the court in overruling the motion in arrest. This exception has not been preserved bye a bill of exceptions as required by the statute in such case made and provided, without which no review of the question can be had. "The statute does not authorize the granting of an appeal from an order overruling a motion in arrest of judgment." Lowe v. Frede, 258 Mo 208. The law certainly contemplates that the party against whom a verdict is returned shall wait until a final judgment is entered on such verdict before taking his appeal. Lowe v. Frede, 258 Mo. 210. In the absence of an express statute no appeal lies from the ruling of courts on motions. Lowe v. Frede, 258 Mo. 210; State ex rel. v. McElhinney, 241 Mo. 608. "Moreover, motions are not original and independent proceedings. . . . They are only incidental steps taken in all classes of cases pending and the rulings of the court upon motions are not judgments of the court; they are merely orders and are not appealable except where authorized by statute." R. S. 1909, secs. 1841, 1842. Appeals are wholly statutory and there can be no appeal unless the statute authorizes it. Bussiere, Admr. v. Sayman, 257 Mo. 303, 308. There is no statute authorizing an appeal from an order of court overruling a motion in arrest of judgment. The appeal being one from an order overruling a motion in arrest of judgment should therefore be dismissed. There is no bill of exceptions in the case. Short v. Kidd, 197 S.W. 66; State v. Goldstein, 137 S.W. 818.

OPINION

In Banc

GRAVES J.

-- This is the second appeal of this case. When first here it was upon the appeal of the plaintiff from an adverse judgment in the Circuit Court of Jackson County. Bonfils was the appellant in that appeal and the judgment was reversed and cause remanded for reasons stated in the opinion.

The original action was one of unlawful detainer, and from the justice's court, through the circuit court, it found its way here, and the circuit court judgment was reversed and cause remanded as aforesaid. Upon the return of the case to the circuit court the defendant, on July 18, 1921, filed in that court a motion to dismiss the cause, in this language:

"Comes now the defendant in the above entitled cause and moves the court to dismiss this cause for the reason that the original petition as filed before the justice of the peace does not state a cause of action, and for the additional reason that the original justice court never had jurisdiction over this cause of action and the circuit court never had jurisdiction on appeal. And this defendant attaches hereto and makes a part hereof the original petition of the plaintiff filed in this cause."

On June 20, 1921, the circuit court entered an order for a new bond in the sum of $ 20,000. This order was not complied with by the defendant. On July 18, 1921, the following entry was made:

"F. G. Bonfils, Plaintiff, vs. Martin's Food Service Company, a Corporation, Defendant, No. 139051.

"This matter now coming on for hearing comes plaintiff in person and by attorney, and defendant appears by attorney, and now by leave of court plaintiff files motion to affirm the judgment of the justice of the peace, rendered in this cause, and defendant files motion to dismiss this cause.

"Now defendant's motion to dismiss this cause is by the court heard and overruled; to which ruling of the court defendant excepts.

"Now plaintiff's motion to affirm the judgment of the justice of the peace, rendered in this on the 7th day day of January, 1920, is by the court sustained in all respects, for the reason that defendant has failed to comply with the order of this court of June 20, 1921, requiring defendant to file herein good and sufficient bond in the sum of $ 20,000; it having been admitted by the parties hereto that defendant did on the 12th day of July, 1921, quit and surrender possession of the premises involved in this cause; to which ruling of the court defendant excepts.

"Wherefore, it is considered, ordered and adjudged by the court that the judgment of the justice of the peace rendered by Casimer J. Welch, justice of the peace, on January 7, 1920, be and the same is in all respects hereby affirmed, which said judgment is in words and figures as follows, to-wit:

"'Now on this 7th day of January, 1920, this cause coming on to be heard, the defendant, being duly summoned by service of summons, in accordance and compliance with the statute in such cases made and provided, did not appear at the time appointed for hearing the complaint of the complainant. The justice proceeded with the hearing of same and proceeded to examine the complaint and the proofs of the complainant, and being fully advised in the premises, finds the defendant guilty of unlawful detainer in manner and form as charged in the complaint, and does further find that the complainant has sustained damages by reason of the premises to the amount of two hundred and fifty dollars, and also that the value of the monthly rents and profits of said premises is three hundred and fifty dollars. It is therefore ordered by the justice that the complainant have restitution of the premises described in said complaint as found to have been unlawfully detained, to-wit: basement of Bonfils Building at southeast corner of 10th & Walnut Streets, situated on Lot 54, Swope's Addition, as the same is marked and designated on the record of deeds of Jackson County, Missouri, at Kansas City, with all appurtenances and fixtures, and that he have and recover of and from the defendant the sum of $ 500 for his damages, and also at the rate of seven hundred dollars per month for the rents and profits from this 7th day of January A. D. 1920, until restitution be made of said premises to the complainant, together with his costs expended herein, taxed at five dollars and forty-five cents.' For all of which let execution issue therefor."

To this judgment the defendant filed a motion in arrest of judgment, in this language:

"Comes now Martin's Food Service Company, the defendant herein and moves the court to arrest the judgment rendered in this cause and set same aside for the following reasons:

"1. That the petition of the plaintiff filed herein does not state facts sufficient to constitute a cause of action against this defendant.

"2. That upon the face of the record said judgment is erroneous.

"3. That the court had no legal jurisdiction of the person of the defendant.

"4. That the court had no jurisdiction of the subject of the action.

"5. That said judgment is for a larger amount than that asked for in plaintiff's petition.

"6. That the original cause in this case was, under the law, triable by a jury, and the court record does not show that a jury was waived.

"7. That the petition of plaintiff does not show that the property involved in this action is situated in Kaw Township Jackson County, Missouri, and fails to show that the justice had jurisdiction, and that this, under the decision of the Kansas City Court of Appeals, in the case of Ellsworth v....