Graves v. Dakessian

• Decision Date: 03 November 1939
• Docket Number: 35628
• Citation: 132 S.W.2d 972
• Parties: GRAVES v. DAKESSIAN et al
• Court: Missouri Supreme Court

132 S.W.2d 972

GRAVES v. DAKESSIAN et al

No. 35628

Supreme Court of Missouri, First Division

November 3, 1939

George F. Hollis and North T. Gentry, both of Columbia, for appellant.

Clark Boggs, Peterson & Becker and Howard B. Lang, Jr., all of Columbia, for respondents.

HYDE and BRADLEY, CC., concur.

OPINION

DALTON, Commissioner.

By this action plaintiff seeks damages in the sum of $ 10,000 for the alleged wrongful death of one Joseph Branham. Appellants' abstract of the record sets out the petition, a motion of defendants to make the petition more definite and certain and plaintiff's application and affidavit for an appeal. There is a recital that the court sustained defendants' motion and rendered judgment for defendants; that plaintiff filed the application and affidavit for an appeal; and that the appeal was granted to this court. There is nothing to indicate when or where the petition, motion or affidavit were filed, nor that the petition or motion were in fact filed, except as might be inferred from the style of the cause which shows, 'Appealed from the Circuit Court of Boone County.' The abstract of the record fails to show any objection or exception to the order of the court sustaining the motion or to the action of the court in rendering judgment for defendants. There is no motion to set aside the judgment and grant a new trial, and no bill of exceptions.

From the certified copy of the judgment and order granting an appeal, as filed in this court, we learn that on the 16th day of November 1936, in the Circuit Court of Boone County, Missouri, the defendants' motion to make plaintiff's petition more definite and certain was taken up, seen, heard and sustained; that plaintiff refused to plead further; that judgment was entered discharging defendants and taxing costs against plaintiff; and that application was made and an appeal was granted to this court.

Appellant assigns error in the sustaining of defendants' motion to make plaintiff's petition more definite and certain.

'The filing of a motion to make more specific and certain is, in effect, a concession that a cause of action is stated in the petition, but, in effect, it challenges the injustice of such petition as to the defendant. The peculiar province of the trial court is to take such action as will insure a fair and impartial trial to all litigants, whether they be plaintiffs or defendants, and hence numerous discretionary orders may be made by such court in the course of the litigation, and its discretion, when soundly exercised, will not be disturbed by this tribunal.' Sartin v. Springfield Hospital Association, Mo.Sup., 195 S.W. 1037, 1038; Ozark Fruit Growers' Association v. Sullinger, Mo.App., 45 S.W.2d 887, 889, Sec. 785, R.S.1929, Mo.St.Ann. § 785, p. 1039.

The condition of the record, however, is such that this court cannot pass upon the merits of the error assigned. The trial court's ruling on the motion was a matter of exception to be preserved in a bill of exceptions. Marsden v. Nipp, 325 Mo. 822, 832, 30 S.W.2d 77, 81; Leahy v. Mercantile Trust Co., 296 Mo. 561, 247 S.W. 396, 401; State v. Sollars, Mo.Sup., 200 S.W. 1052; Keet & Roundtree Dry Goods Co. v. Williams, Mo.App., 202 S.W. 620, 621. 'Error claimed in action of the trial court on a motion, ordinarily, would seem to require not only an objection, but an exception thereto, in order to preserve the point, and a motion for new trial and bill of exceptions would be necessary to properly present the matters complained of on appeal.' Fulton Loan Service No. 2 v. Colvin, Mo.App., 81 S.W.2d 373, 374; Clark v. Davis, 56 Mo.App. 206.

The motion to make more definite and certain is not properly before us. '* * The rule * * * is that nothing but a bill of exceptions can make a motion a part of the record, and, unless a motion is incorporated bodily in the bill, it cannot be taken cognizance of by appellate courts.' Hampe v. Versen, Mo.App., 32 S.W.2d 797, 798; Mississippi Valley Trust Co. v. Franke, 216 Mo.App. 466, 268 S.W. 420, 421; Jefferson City v. Opel, 67 Mo. 394; State v. Baird, 297 Mo. 219, 248 S.W. 596, 599; State v. Baugh, Mo.Sup., 217 S.W. 277, 280; Bank of Dexter v. Stoddard County Bank, 169 Mo. 74, 76, 68 S.W. 902; State v. Ware, 69 Mo. 332; Clark v. Davis, supra; Cantwell v. Lead Co., 199 Mo. 1, 41, 97 S.W. 167, 178; Arnold v. Boyer, 108 Mo. 310, 18 S.W. 913; City of Tarkio v. Clark, 186 Mo. 285, 293, 85 S.W. 329; Houts Missouri Pleading & Practice, Vol. II, pp. 188, § 458.

In Brown, Adm'r, v. Foote, 55 Mo. 178, 179, this court in dealing with a case which had been dismissed in the trial court, on motion said: 'The defendants appeared and moved the court to dismiss the cause. This motion was sustained and the cause dismissed. What the grounds of that were, we are left to conjecture, for a motion, as has been...