Gillings v. Chapple

• Decision Date: 05 March 1918
• Docket Number: No. 14861.,14861.
• Citation: 201 S.W. 620
• Parties: GILLINGS v. CHAPPLE
• Court: Missouri Court of Appeals

201 S.W. 620

GILLINGS v. CHAPPLE

No. 14861.

St. Louis Court of Appeals. Missouri.

March 5, 1918.

Appeal from Circuit Court, Pike County; Edgar B. Woolfolk, Judge.

"Not to be officially published."

Suit by George E. Gillings against George W. Chapple. From a judgment for plaintiff, defendant appeals. Reversed, and cause remanded.

Fitzgerrell & Smith, of Bowling Green, for appellant. James E. Pew and Pearson & Pearson, all of Louisiana, Mo., for respondent.

BECKER, J.

Plaintiff had judgment before a justice of the peace and again on appeal to the circuit court in an action based on a statement or memorandum in the following form:

                                   Louisiana, Mo., 12, 11, '12
                

Mr. George Chappell to George E. Gillings, Dr. (R. F. D. 2, La., Mo.)

                85 yards of plaster at 7..................... 5.95
                307 yards of plaster and lathing at 12....... 36.84
                22 feet chimney 30...........................  6.60
                One flue.....................................  2.00
                                                              _____
                                                              51.39
                  Dec. 5-1912
                By check 15.00 coffee 50..................... 15.50
                                                              _____
                  Bal. due................................... 35.89
                

When the cause was called for trial in the circuit court the learned counsel for defendant objected to the introduction of any evidence under this statement for the reason that it did not state a cause of action. This objection was overruled. ^The jury returned a verdict in favor of the plaintiff and against the defendant in the sum of $28.20. From the judgment entered in favor of plaintiff, after unavailing motions for hew trial and in arrest of judgment, the defendant appeals.

The sufficiency of the statement, originally filed before a justice of the peace, to state a cause of action is open to review on appeal here, even though no motion to dismiss was filed in the circuit court on a trial de novo in such court, and though defendant participated therein and adduced his testimony in defense. In other words, advantage may be taken of a fatally deficient statement filed in a justice court at any stage of the case even in the appellate court. Rundelman v. O'Brien Boiler Works, 178 Mo. App. 642, 161 S. W. 609.

It is well to note that no written motion to dismiss was filed in the circuit court, and that the objection to the sufficiency of the statement was made ore tenus after a witness offered by plaintiff had been sworn; the objection being to the introduction of any evidence thereunder for the reason that said statement did not state a cause of action. Under these circumstances the objection ore tenus is not entitled to as favorable consideration as if it had been made by way of written motion to dismiss and timely filed, and the sufficiency of the statement had been challenged in limine. Stonemets v. Head, 248 Mo. 243, loc. cit. 254, 154 S. W. 108. This method of challenging the sufficiency of a statement when the cause is one originally filed before a justice should not be encouraged, and such objection will only be sustained in those cases where the statement is fatally defective after verdict. Porter v. Railroad Co., 137 Mo. App. 293, 117 S. W. 680; State ex rel. v. Delaney, 122 Mo. App. 239, 99 S. W. 1; Haseltine v. Smith, 154 Mo. 404, 55 S. W. 633. And against such an objection every reasonable intendment, which the facts set up in the statement justify, must be made in favor of the statement. Price v. City of Maryville, 174 Mo. App. 698, 161 S. W. 295 ; Porter v. Railroad Co., supra. We feel that this practice...