Dickey v. Webster County
| Decision Date | 31 December 1927 |
| Citation | 300 S.W. 1086 |
| Parties | DICKEY v. WEBSTER COUNTY. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Webster County.
Action by Samuel N. Dickey, on whose death Charles W. Dickey, administrator of the estate of Samuel N. Dickey, deceased, was substituted as plaintiff, against Webster County. Judgment for plaintiff, and defendant appeals. Affirmed.
Edwin W. Mills, of Marshfield, for appellant.
Haymes & Dickey, of Springfield, for respondent.
The original plaintiff in this case, Samuel N. Dickey, filed suit against Webster county, Missouri, in the circuit court of that county for the balance alleged to be due and owing to him on his salary as prosecuting attorney of the county. He died on December 13, 1925, and the cause was revived in the name of his son and administrator, Chas. W. Dickey. In his amended petition, the administrator seeks to recover the sum of $737.89, as the total of the monthly balances alleged to be due on said salary, together with interest thereon at the rate of 6 per cent. per annum. On the administrator's motion, certain parts of the county's answer were stricken out. The administrator then moved for judgment on the pleadings and stipulations. This motion, also, was sustained and judgment rendered in favor of the administrator for the sum of $737.89. After its motion for a new trial was overruled, the county appealed but filed no bill of exceptions.
The abstract of the record filed by appellant, in connection with its brief and argument, consists of the respondent's amended petition, appellant's answer to said petition, a stipulation signed by the parties, in which they agree that certain facts shall be considered as true and correct, respondent's motion to strike out certain parts of appellant's answer and the court's order sustaining the same, respondent's motion for judgment on the pleadings and stipulations and the judgment rendered, appellant's motion for a new trial and the court's order overruling the same, and appellant's application for an appeal and the court's order granting appellant an appeal to this court. In connection with his brief and argument, respondent filed an additional abstract of the record, which consists only of appellant's answer as it appears when the parts stricken out are omitted. Respondent also filed a motion to dismiss the appeal in this case "for the reason that the appellant in its brief has not furnished the court with a clear and concise statement of the points intended to be insisted on in the argument, and has not set forth the errors alleged to have been committed by the trial court as is required by the statutes of the state of Missouri and by Rule No. 15 of this court." This motion, by order of the court, was taken as submitted with the case.
I. Our examination of appellant's brief discloses that it is subject to some criticism in the particulars mentioned in respondent's motion to dismiss the appeal. However, under the view of the case expressed by counsel for appellant, his brief, taken as a whole, complies, substantially, with the rules of this court. The motion is therefore overruled.
II. This brings us to a consideration of the case on the record before us. Manifestly, our review is limited to the record proper, no bill of exceptions being filed. Under the general rule, the motion to strike out certain parts of the answer, the motion for judgment on the pleadings and stipulations, and the motion for a new trial, included in appellant's so-called abstract of the record, could only become a part of the record by virtue of a bill of exceptions, in which such motions and exceptions to the rulings thereon are properly preserved.
Counsel for appellant, in his reply brief, contends that the motion to strike out, in this case, served the purpose of a demurrer, that it disposed of the case, and is, consequently, a part of the record proper, of which we must take notice. If the motion to strike out is essentially a demurrer, as counsel contends then it is open to review here as a part of the record proper. This exception to the general rule is supported by well-established authority in this state. But, as we view the motion, in connection with the answer stricken at, it did not fill the office of a demurrer, and therefore does not invoke the exception to the general rule.
The petition, in substance, alleges that Webster county is a governmental subdivision of the state of Missouri; that Samuel N. Dickey died on December 13, 1925, and that respondent is the duly appointed, qualified, and acting administrator of his estate; that the said Samuel N. Dickey was the duly elected, qualified, and acting...
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