Gibson v. Armour & Co.

• Decision Date: 26 January 1920
• Docket Number: No. 13452.,13452.
• Citation: 219 S.W. 152
• Court: Missouri Court of Appeals
• Parties: GIBSON v. ARMOUR & CO.

219 S.W. 152

GIBSON v. ARMOUR & CO.

No. 13452.

Kansas City Court of Appeals, Missouri.

January 26, 1920.

Appeal from Circuit Court, Jackson County; Daniel E. Bird, Judge.

"Not to be officially published."

Action by Charles C. Gibson against Armour & Co. From judgment for defendant, plaintiff appeals. Reversed, and cause remanded.

McGilvray, Woodbury & Warren, of Kansas City, for appellant.

W. G. Holt and J. K. Cubbison, of Kansas City, for respondent.

BLAND, J.

On April 17, 1917, plaintiff filed the original petition in this case. On May 15, 1917, defendant filed a motion to make the petition more definite and certain. On December 27, 1917, said motion was sustained. On January 28, 1918, plaintiff filed an amended petition. On February 18, 1918, defendant filed a motion to strike plaintiff's last-mentioned petition from the files. On April 8, 1918, defendant's motion to strike plaintiff's amended petition from the files was sustained, and plaintiff was given ten days to comply with the order of the court, theretofore made, sustaining defendant's motion to make plaintiff's original petition more definite and certain. On April 17, 1918, plaintiff filed another amended petition,. and on April 30, 1918, defendant filed a demurrer to this last-named petition. On May 6, 1918, the demurrer to the last-named petition was sustained as to the second assignment and overruled as to the first. On May 15, 1918, plaintiff filed another, and the last-amended petition filed, which is set out in the abstract of the record in the form that it existed when final judgment was rendered. On June 25, 1918, defendant tiled a motion to strike out certain parts of the petition last mentioned. On November 26, 1918, the court sustained said motion. On January 21, 1919, defendant filed a motion for judgment on the pleadings. This motion, after reciting the various steps taken in the case to that date and setting forth the petition as it read after the sustaining of the last-named motion to strike out certain parts of plaintiff's last petition, alleged that—

"Defendant further shows to the court that the plaintiff has not filed any amended petition or other pleading in this cause since November 26, 1918, which is the day on which former defendant's said motion to strike last above mentioned was sustained.

"Defendant further shows to the court that this said motion to strike, which was sustained by the court, had the effect of a demurrer to those parts of plaintiff's third amended petition which were mentioned in said motion, and which, by order of court, were stricken from said third amended petition.

"Defendant further shows to the court that plaintiff's said third amended petition, with the said parts thereof stricken therefrom, does not show contain any statement of facts sufficient to constitute a cause of action in favor of said plaintiff and against said defendant. * * *

"Wherefore defendant moves the court that judgment be rendered and entered in this cause in favor of said defendant and against said plaintiff, upon the pleadings, and that said plaintiff be ordered and adjudged to pay treble costs."

The court thereupon, on March 12, 1919, rendered the following judgment:

"On this day comes on for hearing defendant's motion for judgment herein, and the court, having heard the evidence and examined the records of this court referred to in said motion, and being fully advised in the premises, doth sustain and motion, except that part thereof asking for treble costs against said plaintiff, which part of said motion is overruled.

"It is therefore adjudged that defendant go hence without day and recover its costs herein against plaintiff, and that execution issue therefor."

Plaintiff urges that, even granting that three petitions had been declared insufficient, the only judgment that could have been rendered under section 1826, R. S. 1909, was one for dismissing the suit and assessing treble costs against plaintiff, whereas the court rendered judgment for the defendant on the merits.

Defenda...