Pogue v. Smallen

• Decision Date: 09 January 1956
• Docket Number: Nos. 44375,No. 2,44376,s. 44375,2
• Citation: 285 S.W.2d 915
• Parties: Fellx POGUE, Appellant, v. Dewey SMALLEN, Respondent. Theodore HEFFRON, Appellant, v. Dewey SMALLEN, Respondent
• Court: Missouri Supreme Court

Page 915

285 S.W.2d 915

Fellx POGUE, Appellant, v. Dewey SMALLEN, Respondent.

Theodore HEFFRON, Appellant, v. Dewey SMALLEN, Respondent.

Nos. 44375, 44376.

Supreme Court of Missouri, Division No. 2.

Jan. 9, 1956.

W. A. Brookshire, Columbia, for appellant.

Roberts & Roberts, Smith & Smith, Farmington, J. O. Swink, Farmington, for respondent.

STOCKARD, Commissioner.

In these consolidated actions Felix Pogue and Theodore Heffron sought to recover damages from Dewey Smallen for alleged false imprisonment. The amount of damages prayed for gives this court jurisdiction. The petitions are identical except for the names of the plaintiffs. In Count I it is alleged that on February 5, 1951, in Farmington, Missouri, the defendant unlawfully, maliciously, and with intent to injure, falsely imprisoned the plaintiffs in the county jail for 24 hours by force, without reasonable cause, right or authority, and against the will of plaintiffs. Count II contained the same allegations except it is based on an alleged second false imprisonment for six hours at the same place on February 6, 1951.

The trial judge dismissed the petitions with prejudice without stating the reason therefor, but the action was taken after the defendant had filed the following motion in each case:

'Defendant moves this Court that it make and enter its order striking Count I and Count II of plaintiff's petition herein and dismissing this cause with prejudice and for such other and further relief as to the Court may seem meet and just in the premises;

'Upon the Grounds That:

'1. Defendant states that the imprisonment of plaintiff was by defendant, in his capacity as the then duly, elected, qualified and acting Sheriff of St. Francois County, Missouri, and that the imprisonment was by virtue of a commitment issued to him by the Circuit Court of said County and State, that said commitment was regular on its face; that plaintiff had been adjudged guilty of contempt of said Court; that said Court had jurisdiction to commit to jail for contempt; that said Court had jurisdiction of the plaintiff's person at the time and place; all of which are of record in the office of the Circuit Clerk for said County and State.

'2. Plaintiff's petition wholly fails to state a cause of action against the defendant.'

Section 509.300 (all statutory references are to RSMo 1949, V.A.M.S.) provides that 'The objections of failure to state a claim upon which relief can be granted or to state a legal defense to a claim may be raised by motion when these objections appear on the face of the pleadings.' Each petition states a cause of action for false imprisonment. The respondent in his brief does not contend otherwise. The motions to dismiss for the reason stated in paragraph 2 thereof, that the petitions fail to state a claim upon which relief can be granted, should have been overruled. Baysinger v. Hanser, 355 Mo. 1042, 199 S.W.2d 644; Abbott v. Seamon, Mo.App., 229 S.W.2d 695; State ex rel. State Highway Commission v. Shultz, Mo. App., 243 S.W.2d 808. Section 509.290 provides that ten separately listed objections 'and other matters' may be raised by motion whether or not the same may appear from the pleadings and other papers filed in the cause. The matters urged in defendant's motions are not included in the ten listed objections. If the defendant is entitled to raise these matters by motion pursuant to Section 509.290, it is by virtue of the phrase 'and other matters.'

The objections specifically authorized to be raised by motion in Section 509.290 are not directed at the merits of the alleged claim of the pleader. They raise only questions which challenge the pleader's right to proceed in the manner proposed because of his incapacity to sue, because of jurisdiction or venue reasons, or because of procedural irregularities. This court has held that the term 'and other matters' as used in Section 509.290 includes the defense of res judicata. Hamilton v. Linn, 355 Mo. 1178, 200 S.W.2d 69; Metcalf v. American Surety Co. of New York, 360 Mo. 1043, 232 S.W.2d 526, 530. But this defense, like the ten objections specifically authorized to be raised by motion, 'would dispose of an action groundless on the uncontroverted facts', Metcalf v. American Surety Co. of New York, supra, even though it is sometimes referred to as a defense to the merits of the claim, and may be raised as an affirmative defense in an answer or reply. Hamilton v. Linn, supra.

Reference to defendant's motions discloses that the matters raised in paragraph 1 are not objections which would dispose of an action on uncontroverted facts, but the motions contain allegations of facts which controvert the merits of the claim of the plaintiff. This is not the purpose of the motion provided for in Section 509.290. Finch v. Edwards, 239 Mo.App. 788, 198 S.W.2d 665. To hold otherwise, would authorize a defendant in a suit for personal injuries, for example, to plead in a motion to dismiss the petition that the acts of the plaintiff were the sole cause of the plaintiff's injury and then have a hearing on that issue without a jury.

The principal contention in defendant's brief is that the trial court could take judicial notice of the matters raised in paragraph 1 of the motions. Assuming this could be done, it would be for two possible purposes: to notice judicially the matters set out as constituting evidence of a defense to the suits on the merits, or to notice judicially the matters and...