Ewing v. Vernon County

• Decision Date: 25 February 1909
• Citation: 116 S.W. 518,216 Mo. 681
• Parties: EWING v. VERNON COUNTY.
• Court: Missouri Supreme Court

116 S.W. 518

216 Mo. 681

EWING v. VERNON COUNTY.

Supreme Court of Missouri, Division No. 1.

February 25, 1909.

1. APPEAL AND ERROR (§ 511)—RECORD—SUFFICIENCY.

Consideration of a bill of exceptions is not precluded because the original abstract outside the bill does not show a record entry showing a motion for a new trial or extension of time for filing a bill, where those matters are shown by a supplemental or corrected abstract filed in due time.

2. PLEADING (§ 367)—MOTION TO MAKE PETITION MORE SPECIFIC—WAIVER.

An answer waives a motion to make the petition more specific, whether filed before or after the motion.

3. PLEADING (§ 367)—MOTION TO MAKE PETITION MORE SPECIFIC — ANSWER — WITHDRAWAL—NECESSITY.

If, after answering, defendant desires to move to make the petition more specific, he should withdraw his answer, and there should be a record entry showing that fact.

4. EXCEPTIONS, BILL OF (§ 26)—MATTERS IMPROPERLY SHOWN BY.

A recital in a bill of exceptions that the answer was "refiled" is no evidence that the answer was withdrawn and refiled.

5. APPEAL AND ERROR (§ 500)—REVIEW—INSUFFICIENT RESERVATION OF OBJECTION.

A motion to make the petition more specific cannot be considered on appeal, where there is no record entry in the abstract to show that the motion was filed or ruled on; it being insufficient that the bill of exceptions recites that the motion was filed.

6. EXCEPTIONS, BILL OF (§ 9)—OFFICE—CONTENTS.

A bill of exceptions properly contains only matter of exception; its object being to make that a part of the record which is not already part of it, and it does not properly show filing of a motion or order thereon.

7. PLEADING (§ 352)—"MOTION TO STRIKE" AND "DEMURRER" DISTINGUISHED.

A motion to strike seeks an order of court of less dignity than a judgment, while a demurrer raises an issue at law and seeks a trial and judgment on that issue.

8. PLEADING (§ 352)—MOTION TO STRIKE—OFFICE.

A motion to strike a petition might lie against a frivolous pleading, a second petition departing from the first, or a sham pleading, or against trifling, nugatory, redundant, or irrelevant matter, or matter of duplicity, but it cannot fill the office of a demurrer on challenging demurrable defects in the petition.

9. STATUTES (§ 219)—CONSTRUCTION—OFFICIAL INTERPRETATION.

Official interpretation of administrative statutes is entitled to weight on a judicial construction.

10. REGISTERS OF DEEDS (§ 3)—JANITOR SERVICE—LIABILITY FOR.

The county is bound to provide janitor service for the office of recorder of deeds, and, when the county court does not do so, the recorder may pay it himself and enforce reimbursement.

11. REGISTERS OF DEEDS (§ 3)—EXPENSES—LIABILITY—"KEEP."

Under Rev. St. 1899, § 9055 (Ann. St. 1906, p. 4184), requiring the recorder of deeds to "keep" his office at the county seat, section 9069 (Ann. St. 1906, p. 4188), requiring him to deliver deeds when recorded, and section 9089 (Ann. St. 1906, p. 4192), requiring him in certain instances to transmit papers from one county to another, he is entitled to reimbursement from the county for stamps used in his official business; "keep," as used in section 9055, meaning to "maintain," to "provide for," involving the idea of effort in that line, i. e., that the office shall be carried on, enjoyed, etc., and showing a legislative intent that the recorder should maintain and provide for his office in a reasonable way, for the benefit of the public, at public expense.

Appeal from Circuit Court, Henry County; W. W. Graves, Judge.

Action by G. G. Ewing against Vernon County. From a judgment for plaintiff, defendant appealed to the Kansas City Court of Appeals, whence the cause was transferred. Affirmed.

A. J. Smith, for appellant. Homer M. Loage and Scott & Bowker, for respondent.

LAMM, P. J.

Plaintiff sues in two counts. The first asks judgment for $118.90 for the reasonable value of janitor service paid out by him as recorder of deeds of Vernon county during certain years of his term as such officer. The alleged grounds of liability are that the law requires him to keep and maintain his office at the seat of justice of said county; that he did keep and maintain it at the courthouse in the city of Nevada; that, to keep and maintain it as required by law, it was necessary to employ a janitor to keep the rooms of said office in a reasonably clean and comfortable condition for the use of the plaintiff, his clerks, and the public in general; that it was the duty of defendant county to provide such janitor and pay for such services; that prior to a certain date it had performed that duty, but on a certain date, and thereafter for 49½ months, had failed and neglected to perform it, and, through its county court, forbade the janitor of its courthouse to perform such duties whereby plaintiff was compelled to hire a janitor to do that work at a reasonable outlay of $2 per month; and, having demanded of defendant that it reimburse him for such outlay, on refusal to so do, he sues. The second count asks judgment for $94.80, the reasonable value of postage stamps used in the performance of alleged official duties as recorder of deeds during the same years, and the further sum of $49.75 for outlays for printed blanks, such as warranty and quitclaim deeds, chattel mortgages, and affidavits for the use of applicants for marriage licenses. The cause was taken on a change of venue from the Vernon to the Henry circuit court, and, being tried before the Honorable Waller W. Graves, circuit judge, without a jury, judgment went in favor of defendant on the item for blanks, went for plaintiff on the items of outlay for janitor service and stamps; and plaintiff abided it. Defendant, not content, appealed to the Kansas City Court of Appeals. That court transferred the cause here on a question of jurisdiction; the suit being against a county. Material record facts will accompany the determination of points made.

1. Plaintiff's counsel argue that the bill of exceptions cannot be considered, for that there is no record entry abstracted showing a motion for a new trial was filed, nor does any record entry show an extension of time for filing a bill of exceptions after the trial term, as appears to have been the case. The bill of exceptions does narrate those facts, but they appear nowhere else in the original abstract. If this were all, the point would be well made, but it is not all. The cause was briefed in the Kansas City Court of Appeals, and after its transfer to this court, on the 27th of June, 1908 (in due time), defendant filed here a supplemental or corrected abstract supplying such omitted record entries. Hence, there is left no substance in the contention, and the point is ruled against the plaintiff.

2. At the trial (and after answering) defendant filed a motion to require plaintiff to make the allegations in the second count of his petition more specific and definite in mentioned particulars. This motion was overruled, and defendant assigns that ruling for error. There is no merit in the assignment—this because:

(a) An answer waives such motion, whether filed before or after the motion. If defendant desired to file such motion, he should have withdrawn his answer, and there should be a record entry showing that fact. There is a narration in the bill of exceptions that the answer was "refiled." But that narration has no place in a bill of exceptions, ergo, is no evidence of the fact that the answer was withdrawn and refiled.

(b) But, taking the answer as withdrawn before the motion, and as refiled after the motion was overruled, then defendant should have stood on his motion as to the second count. By refiling his answer he took the life out of his exception on appeal; for it has become a commonplace of appellate procedure that answering over waives a motion to make more specific. White v. Railroad, 202 Mo., loc. cit. 561 et seq., 101 S. W. 14, and cases cited.

(c) But there is another and equally fatal objection to considering the motion, viz., neither in the original nor in the amended abstract is it shown by any record entry that such motion was filed or ruled on. True, the bill of exceptions sets forth that such motion was filed. But a bill of exceptions is no evidence of the filing and the order overruling a motion of that character. A bill of exceptions, as its very name imports, is a receptacle for matter of exception, and for naught or aught else. Its object is to make that a part of the record which is not already part of it. It springs up subsequently to the filing of the motion and the order of court entered thereon, and fills no office evidencing such filing or order. Thompson v. Ruddick, 213 Mo. 561, 111 S. W. 1131; Stark v. Zehnder, 204 Mo., loc. cit. 449, 102 S. W. 992; Harding v. Bedoll, 202 Mo., loc. cit. 630, 100 S. W. 638; Pennowfsky v. Coerver, 205 Mo. 135, 103 S. W. 542, and cases cited.

3. Defendant assigns for error the overruling of its motion to strike out the petition. Touching this motion, the abstracts show the same condition of things considered in paragraphs "a," "b," and "c" under head of point 2. Hence, for reasons there assigned, we ought not consider it. But it is well enough to add an observation or two. Learned counsel for defendant, not only seeking to widen the statutory rules differentiating motions from demurrers, also hew out a novel path of doubtful use verging from the main-traveled road of general practice. The ground of the motion is that "said petition does not state facts sufficient to constitute a cause of action." Thus they seize the general statutory ground of demurrer and harness it up for service in a motion to strike out. Now, motions and demurrers seek different remedies. A motion seeks some order of court falling short of the dignity of a judgment; a demurrer raises an issue at law, and seeks a trial and judgment on that issue. Bliss on Code Pleading (3d Ed.) §§ 418, 420, et seq.

A motion...