Gill v. Farmers' & Merchants' Bank

• Citation: 195 S.W. 538
• Decision Date: 30 April 1917
• Docket Number: No. 11988.,11988.
• Parties: GILL v. FARMERS' & MERCHANTS' BANK.
• Court: Court of Appeal of Missouri (US)

195 S.W. 538

GILL v. FARMERS' & MERCHANTS' BANK.

No. 11988.

Kansas City Court of Appeals. Missouri.

April 30, 1917.

On Motion for Rehearing, June 12, 1917.

Appeal from Circuit Court, Bates County; C. A. Calvird, Judge.

Action by Charles Gill, trustee in bankruptcy, against the Farmers' & Merchants' Bank. Judgment for defendant, and plaintiff appeals. Affirmed. On motion for rehearing. Motion overruled.

Sherman & Landon, of Kansas City, for appellant. Templeton & Hales, of Rich Hill, and Ellis & Yale, of Kansas City, for respondent.

ELLISON, P. J.

Plaintiff is trustee in bankruptcy, and instituted this action against the defendant bank for $3,424.60. The judgment in the trial court was for the defendant. The case was before us on a former occasion. 189 Mo. App. 401, 176 S. W. 1111.

It appears from the record proper, and also from the bill of exceptions, that a motion in arrest of judgment was filed and overruled, and then after that a motion for new trial was filed and overruled. In such condition of case we cannot notice the motion for new trial, nor any matter of exception in the course of the proceedings and trial in the circuit court. A motion in arrest is a concession that the verdict is right, and that reliance is only placed on some error of record. "When a motion in arrest has been made and overruled it will then be too late to file a motion for new trial afterwards, for the motion in arrest presupposes and admits that the verdict was correct." (Italics the court's.) State v. Griffie, 118 Mo. 188, 196, 23 S. W. 878; Bank v. Bayliss, 41 Mo. 274. The motions in this case appear to have been filed on the same day as in both the cases just cited, but in each of those the record showed that the motion for new trial was disposed of before the motion in arrest was considered; and it is stated, with emphasis, that if, as in the present instance, the motion in arrest is first filed and overruled, it is then too late to file a motion for new trial.

Defendant's answer, besides containing a general denial, set up, separately, two defenses. The first was to the effect that it received a deposit from Mrs. Ames (afterwards the bankrupt) of $3,424.60, and that she owed the defendant various sums on various notes, as well as a certain overdraft. It made the claim that defendant could rightfully apply the deposit to these debts, and it was asked that they be allowed as a set-off. The second part of the answer was a plea of limitations and estoppel. Plaintiff filed a motion to strike out the first part of the answer, and it was overruled, but no exception was preserved in the bill of exceptions, nor was error assigned in the motion for new trial. Notwithstanding this failure to save the point in a bill of exception and a motion for new trial, plaintiff seems to assume that it is open for our consideration. This must be based on the idea that a motion to strike out, for the reason that the matter struck at does not constitute a defense, answers the purpose of a general demurrer and preserves itself in the record proper. But while a motion which strikes at the whole defense, so that, if it be sustained, judgment may be entered, will be likened to a general demurrer and may be preserved in the record proper, yet, if it only strikes at a part of the answer, leaving a defense, that rule does not apply, and the point must be preserved in a bill of exceptions, followed by a motion for new trial calling attention thereto. In order to preserve itself, the motion should be "dispositive of the whole case on a matter of...