Dickey v. Webster County

• Decision Date: 31 December 1927
• Parties: Charles W. Dickey, Administrator of Estate of Samuel N. Dickey, v. Webster County, Appellant
• Court: Missouri Supreme Court

300 S.W. 1086

318 Mo. 821

Charles W. Dickey, Administrator of Estate of Samuel N. Dickey, v. Webster County, Appellant

Supreme Court of Missouri

December 31, 1927

Appeal from Webster Circuit Court; Hon. C. H. Skinker Judge.

Affirmed.

Haymes & Dickey for respondent.

(1) In appellant's brief there is no assignment of errors alleged to have been committed by the trial court. Only general conclusions of law appear in lieu thereof. This does not comply with either the law or the rules of this court. The appeal should be dismissed. Rules 15 and 16; Vahldick v. Vahldick, 264 Mo. 529; Hamilton v. Crowe, 175 Mo. 634; Hiemenz v. Harper, 204 S.W. 723. (2) The motion to strike out part of appellant's answer is not open for review, because such motion is not a part of the record proper, but is a matter of exception and can only be preserved by a bill of exceptions. Interstate Ry. Co. v Railroad Co., 251 Mo. 707; Williams v. Ry. Co., 112 Mo. 463; Mutual Ins. Co. v. Tuemler, 251 S.W 727; Sotham v. Drovers Tel. Co., 239 Mo. 606; Carder v. Drainage Dist., 262 Mo. 542. (3) The motion for judgment on the pleadings and stipulations is not before this court for review, because it can be brought to the attention of an appellate court only by an exception to the ruling thereon duly preserved in a bill of exceptions. Hodson v. McAnerney, 167 Mo.App. 468; Godfrey v. Godfrey, 228 Mo. 507.

Edwin W. Mills for appellant in reply.

In the trial court, defendant presented but one defense to respondent's action, viz., that Samuel N. Dickey, since deceased, while prosecuting attorney of appellant county, had failed to comply with Sec. 735, R. S. 1919, and that he had thereby forfeited his salary as such officer, under the provisions of Section 737. This sole defense was by the trial court stricken out on motion of respondent; defendant refused to further plead, whereupon the lower court rendered judgment for plaintiff upon the pleadings in the amount prayed; appellant in its motion for new trial specifically excepted to such action of the trial court; the errors alleged to have been committed by the trial court were, striking out appellant's sole defense set up in its answer, rendering judgment upon the pleadings, and in refusing appellant a new trial. (2) The motion to strike out part of appellant's answer is here open for review, though no bill of exceptions was filed. It is in the nature of a demurrer to appellant's answer, and is a part of the record proper. "The legal character of a pleading is to be determined by its substance and not name, and a motion to strike out or dismiss may fill the office of a demurrer, and be so treated, where it is, to all intents and purposes a demurrer, and is dispositive of the whole case as a matter of law." State ex rel. v. Ellison, 266 Mo. 429; In re Estate of Howard, 128 Mo.App. 490; 1 Bacon's Missouri Practice (1912 Ed.) sec. 580, p. 690; St. Louis Ry. Co. v. Lewright, 113 Mo. 660; Harned v. Shores, 75 Mo.App. 550; Bohm v. Stevens, 181 Mo.App. 236; Brown v. Appelman, 83 Mo.App. 79. "The record proper is the petition, summons and subsequent pleadings, including the verdict and judgment." 1 Bacon's Missouri Practice, sec. 580, p. 691; South Co. v. Pretz, 125 Mo. 691; Bateson v. Clark, 37 Mo. 31. "The question whether the pleadings support and warrant the judgment is one which arises on the record proper, and may be tested by writ of error or appeal from the judgment without any exception." 2 Cyc. 718. In applying the principle stated in the text it is held that where judgment is rendered on the pleadings no exceptions are necessary to preserve for review error in the rendition of such judgment, because the error is apparent of record. Nylan v. Renhard, 10 Colo.App. 46; Johnson v. Manning, 2 Ida. 1073; Murray v. Southerland, 125 N.C. 175; Upper Appomattox Co. v. Buffaloe, 121 N.C. 37; Thornton v. Brady, 100 N.C. 38; Donkle v. Milem, 88 Wis. 33.

Henwood, C. Higbee and Davis, CC., concur.

OPINION

HENWOOD

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 six 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...