Gorman v. Cox
| Decision Date | 03 December 1945 |
| Docket Number | 39373 |
| Citation | 190 S.W.2d 935 |
| Parties | E. D. Gorman, Plaintiff in Error, v. Mira M. Cox, Betty E. Gorman, AB Cox, J. Grady Kauffman, Administrator with the Will annexed of the Estate of Elizabeth Gorman, Defendants in Error |
| Court | Missouri Supreme Court |
From the Circuit Court of Mercer County Civil Appeal Judge Ellis Beavers
Affirmed
By writ of error (instituted in December 1944) E. D. Gorman seeks a review of the trial court's ruling in a case wherein he was plaintiff and Mira M. Cox, Ab Cox, Betty E Gorman and J. Grady Kauffman, Administrator, were defendants. The point he makes in his brief and argument is that he was entitled to judgment on the pleadings. The basis of his claim is that the defendants by filing a motion, which he says was in fact a demurrer to his petition, admitted the facts set forth in his petition and, therefore, the trial court should have sustained his motion for judgment on the pleadings.
Aside from the general unsoundness of the plaintiff's contention that the court may upon the filing of a demurrer to a petition, without further ado, enter judgment on the pleadings (Cole County v. Angney, 12 Mo. 132, 135; Granite Bituminous Paving Co. v. Stange, (Mo. App.) 8 S.W. 2d 1087; Mo. R.S.A., Sec. 925) there is the further insuperable difficulty of the record he has caused to be filed in this court. The record, as certified here by the clerk of the circuit court (which we accept as conclusive McDonnell v. G.B. Peck Dry Goods Co., (Mo.) 228 S.W 759) consists of the plaintiff's petition, the defendants' motion, an answer by the defendants, the court's judgment or decree and the minutes of the court. The petition, which sought to set aside deeds and impress realty and personalty with a lien, was filed in June 1943. On September 13, 1943 the defendants filed a motion to dismiss the plaintiff's petition for the stated reason that there was both a misjoinder of causes of action and of parties. Upon the filing of the motion, the plaintiff filed a motion for judgment on the pleadings, stating as grounds therefor that the demurrer admitted the truth of the allegations of the petition. The court's minutes recite that the defendants' motion to dismiss was taken up, considered and overruled and that the plaintiff's motion for judgment on the pleadings was denied. On the same day, the minutes appropriately recite, the defendants were given leave to file an answer. Excelsior Steel Furnace Co. v. Smith, (Mo. App.) 17 S.W. 2d 378, 380; 49 C.J., Sec. 567. They filed an answer and the minutes then recite that the court requested the plaintiff to submit his evidence in support of the petition but that he refused to do so, "whereupon the defendants produce evidence in support of their answer." Not only do the minutes recite that the court found for the defendants on each and every count of the petition, upon the evidence adduced, but the judgment recites,
Obviously the court did not in fact sustain a demurrer, either to the plaintiff's petition or to his evidence. This is not an instance of a judgment being entered against a plaintiff upon his refusal to plead again after having a demurrer sustained to his petition. Meyer v. Mulligan, (Mo. App.) 175 S.W. 2d 924. Neither did the court sustain an objection to the introduction of any evidence on the ground that the petition wholly failed to state a cause of action. Butler v. Lawson, 72 Mo. 227. ...
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