De Lisle v. Spitler
| Decision Date | 17 June 1942 |
| Docket Number | 37441 |
| Citation | 162 S.W.2d 854,349 Mo. 649 |
| Parties | L. L. DeLisle, Administrator of the Estate of Geraldine DeLisle, Appellant, v. Merrill Spitler |
| Court | Missouri Supreme Court |
Appeal from Mississippi Circuit Court; Hon. Frank Kelly Judge.
Affirmed.
J Grant Frye for appellant.
(1) If neither the original petition nor the first amended petition are before this court, but only the second amended petition plaintiff submits that, on the face of the record, this judgment should be reversed because defendant's "Motion to Dismiss" is nothing more than a demurrer to the second amended petition on the ground that the cause of action is barred by the Statute of Limitations. (2) The "Motion to Dismiss" is a demurrer to the second amended petition on the ground that the cause therein stated is barred by the Statute of Limitations. Bank of Tupelo v. Stonum, 220 Mo.App. 152, 281 S.W. 110; Jones v. McGonigle, 37 S.W.2d 892.
Oliver & Oliver for respondent.
(1) Appellant complains that the trial court erred in sustaining the motion to strike the second amended petition on the ground that the second amended petition was a departure. This question is not presented to this court for review, and, therefore, the action of the trial court must stand and the judgment be affirmed. (a) There being no bill of exceptions nor motion for new trial, only the record proper is subject to review by the Supreme Court. Spotts v. Spotts, 331 Mo. 917, 55 S.W.2d 977, 87 A. L. R. 660; Home Ins. Co. of N. Y. v. Mo. Power & Light Co., 327 Mo. 1201, 39 S.W.2d 1039. (b) A motion to strike out an amended petition on the ground that there is a departure does not serve the office of a demurrer and, therefore, is not a part of the record proper, and the action of the trial court on the motion cannot be reviewed in the absence of a bill of exceptions or a motion for new trial. Home Ins. Co. of N. Y. v. Mo. Power & Light Co., 327 Mo. 1201, 39 S.W.2d 1039; Reinker v. Wesche, 117 S.W.2d 334; Shohoney v. Railroad, 231 Mo. 149. (2) Appellant contends that the trial court erred in sustaining the motion to strike the second amended petition on the ground that the cause of action stated therein was barred by the Statute of Limitations. (a) Where an amended petition is filed, all prior petitions are abandoned and can only be made a part of the record proper by a bill of exceptions. There being no bill of exceptions nor a motion for new trial, the only record before this court consists of the second amended petition, that part of the motion to strike which asserts the action is barred, the ruling of the trial court thereon, and the judgment of the trial court. Home Ins. Co. of N. Y. v. Mo. Power & Light Co., 327 Mo. 1201, 39 S.W.2d 1039; Spotts v. Spotts, 331 Mo. 917, 55 S.W.2d 977, 87 A. L. R. 660; Reinker v. Wesche, 117 S.W.2d 334.
The trial court sustained defendant's motion to strike plaintiff's second amended petition and to dismiss. Plaintiff refused to plead further, and judgment for defendant was entered, and plaintiff appealed.
The action was begun in the Circuit Court of New Madrid County on April 17, 1937, by the filing of a petition against the trustees of the St. Louis-San Francisco Railway Company and Merrill Spitler as defendants. It grows out of the alleged wrongful death of plaintiff's decedent who, as a passenger riding in an automobile driven by defendant Spitler, is alleged to have sustained mortal injuries when said automobile collided with a Frisco passenger train in Portageville on February 9, 1937, and as a result of which she died on February 14, 1937. The case was voluntarily dismissed as to the trustees of the railway company on December 13, 1937, on which date plaintiff filed an amended petition as to the remaining defendant, Spitler, designated as "First Amended Petition." Defendant demurred thereto, which was overruled. Whereupon defendant answered, and plaintiff filed reply. On June 7, 1939, after a jury was empaneled and sworn to try the cause, and the testimony heard in part, plaintiff was granted leave to file an amended petition; the submission of the cause was set aside, the jury discharged, and cause continued. Thereafter on June 30, 1939, plaintiff, pursuant to leave, filed his "Second Amended Petition," the subject of the present controversy. Thereafter defendant filed his motion to dismiss and to strike said amended petition from the files. On January 17, 1940, on defendant's application, a change of venue was ordered, and the cause transferred to Mississippi County, after which defendant filed his second motion to dismiss and to strike from the files plaintiff's second amended petition. The latter motion was sustained, judgment entered, and this appeal followed under the circumstances set forth in the first paragraph hereof.
The single assignment is the court erred in striking out and dismissing plaintiff's second amended petition on the ground of departure, and on the ground that the cause of action therein alleged was barred by the statute of limitations. The case is here on the record proper, no motion for new trial or bill of exceptions having been filed. In this situation defendant contends that the assignment of error with respect to the court's action on the ground of the motion setting up departure is not before us, for the reason the motion...
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... ... amended petition. The question of departure must be raised by ... motion and cannot be raised by demurrer. DeLisle v ... Spitler, 349 Mo. 649, 162 S.W.2d 854; Reinker v ... Wesche, 117 S.W.2d 334; Walker v. Railroad, 193 ... Mo. 453, 92 S.W. 83; Grymes v. Mill & Lumber ... ...
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Buder v. Reller
...could be enforced." Such a ground stated in the motion challenged the sufficiency of the amended petition. But, as pointed out in De Lisle v. Spitler, supra, where court was treating with a similar question, the examination of the sufficiency of the amended petition, as if tested by a demur......