Butterfield v. Butterfield

• Citation: 197 S.W. 374,195 Mo. App. 37
• Parties: BUTTERFIELD v. BUTTERFIELD.
• Decision Date: 03 July 1916
• Court: Court of Appeal of Missouri (US)

197 S.W. 374

195 Mo. App. 37

BUTTERFIELD v. BUTTERFIELD.

Kansas City Court of Appeals. Missouri.

July 3, 1916.

On motion for rehearing. Motion denied. Former decision upheld.

For former opinion, see 187 S. W. 295.

PER CURIAM.

We stated in the opinion that plaintiff moved to strike out that part of the answer setting up that plaintiff and defendant were husband and wife, leaving nothing in the answer save a general denial. It was error on the part of the trial court to strike out that part of the answer, and we stated that the error could be preserved without being mentioned in the motion for new trial. But whether that was a correct statement or not cannot, in the least, affect plaintiff's rights, or the result which we reached. For we proceeded to state that though the fact that plaintiff and defendant were husband and wife at the time the assault and battery occurred was stricken out on plaintiff's motion, yet proof of that fact was allowed under the general denial. Plaintiff will not be heard to say that such evidence was improperly received because not pleaded, for that would allow her to take advantage of an error she asked and caused the court to commit. Besides, while the evidence was objected to by plaintiff, that was not one of the reasons assigned, unless we say that one of the reasons, viz. that such question "is not in issue in this case," refers to such defense not being pleaded in the answer. If we concede that that objection covered the point, we need only say that it was in issue until plaintiff wrongfully asked the court to commit the error by striking it out. Plaintiff's position amounts to this, that she can wrongfully strike a good defense out of an answer and then object to that defense being proven because it was not in the answer. But plaintiff's brief disposes of the point in defendant's favor where she repeatedly states that defendant cannot complain of striking out his defense because the evidence was admitted and cured the error. And that point is restated in the motion for rehearing. So it is of no consequence whatever, and the opinion so shows, whether we were right or wrong in stating that the motion acted as a demurrer and could be preserved without a motion for new trial.

Another ground for the motion for rehearing is the statement that the abstract presented by defendant does not contain all of the evidence heard at the trial. It is enough to say of this that no suggestion of that kind was made by plaintiff in...