McMillen v. City of Columbia

• Decision Date: 19 November 1906
• Citation: 97 S.W. 953,122 Mo. App. 34
• Parties: McMILLEN v. CITY OF COLUMBIA.
• Court: Missouri Court of Appeals

97 S.W. 953

122 Mo. App. 34

McMILLEN v. CITY OF COLUMBIA.

Kansas City Court of Appeals. Missouri.

November 19, 1906.

Rehearing Denied December 3, 1906.

1. PLEADING — ANSWER — WAIVER OF OBJECTIONS TO PETITION.

Filing an answer to the merits, waived an exception to the overruling of a motion to make the petition more definite and certain.

2. EVIDENCE—RELEVANCY TO ISSUES—CHANGE OF ALLEY GRADE — DAMAGES.

In an action against a city by the owner of a lot abutting on an alley for damages from a change of the grade of the alley, it was error to permit a witness to testify that he would not buy the lot in the condition it was then in, though he had once contemplated buying it.

3. MUNICIPAL CORPORATIONS — CHANGE OF ALLEY GRADE — MEASURE OF DAMAGES.

The measure of damages was the difference in value just before and just after the injury.

Appeal from Circuit Court, Boone County; A. H. Waller, Judge.

Action by John McMillen against the city of Columbia. From a judgment in favor of plaintiff, defendant appeals. Reversed and remanded.

Rothwell, Gillespy & Conley, for appellant. Webster Gordon, for respondent.

ELLISON, J.

This action was instituted to recover damages from the defendant city for lowering the grade in an alley upon which plaintiff's property was located. The judgment in the trial court was for the plaintiff.

Before an answer was filed defendant moved that a certain portion of plaintiff's petition be made more definite and certain. The motion was overruled, and exception taken. Afterwards the defendant filed its answer to the merits, and the case was tried. By filing an answer to the merits the defendant waived its exception to the action of the court in overruling the motion. Dakan v. Chase (Mo. Sup.) 94 S. W. 944; State ex rel. v. Bank, 160 Mo. 640, 646, 61 S. W. 676; Sauter v. Leveridge, 103 Mo. 615, 15 S. W. 981; Silver v. Railway Co., 21 Mo. App. 5. Defendant contends that the work was done before an ordinance was passed by the city council, and that therefore the city was not liable, since it had not authorized the work when it was done; and that in consequence its demurrer to the evidence should have been sustained. An examination of the record shows that there was evidence tending to show that the work was not begun until after the ordinance was passed. On pages 21 and 22 of the abstract of the street commissioner's testimony, it clearly appears that the ordinance was passed before the work was done. He stated he was acting in obedience to the ordinance. We do not regard an answer of the same witness which...