Poncot v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 11 December 1913
• Citation: 161 S.W. 1190,176 Mo. App. 225
• Court: Missouri Court of Appeals
• Parties: PONCOT v. ST. LOUIS, I. M. & S. RY. CO.

161 S.W. 1190

176 Mo. App. 225

PONCOT v. ST. LOUIS, I. M. & S. RY. CO.

Springfield Court of Appeals. Missouri.

December 11, 1913.

Rehearing Denied January 6, 1914.

1. APPEAL AND ERROR (§ 301)—RESERVATION OF GROUNDS OF REVIEW—MOTION FOR NEW TRIAL.

Under Rev. St. 1909, § 2083, requiring the Supreme Court and Courts of Appeals to examine the record and award a new trial, reverse or affirm, or give such judgments as the circuit court ought to have given, and section 2081, providing that no exceptions shall be taken in an appeal or writ of error to any proceedings in the circuit court except such as have been expressly decided by such court, matters of exception not embraced in a motion for a new trial cannot be considered by the Court of Appeals.

2. APPEAL AND ERROR (§ 544)—RESERVATION OF GROUNDS OF REVIEW—MOTION FOR NEW TRIAL.

A motion to strike an amended petition on the ground of departure from the original petition is not equivalent to a demurrer and is not a part of the record proper, and hence the ruling of the court thereon must not only be made a part of the record by a bill of exceptions, but must be embraced in a motion for a new trial giving the circuit court an opportunity to correct the alleged error before it can be considered or reviewed on appeal.

3. APPEAL AND ERROR (§ 866) — SCOPE OF REVIEW.

Where plaintiff, after the striking of his amended petition on the ground of departure from the original petition, failed to prosecute the suit, whereupon the court dismissed the cause, on an appeal from the judgment of dismissal, the dismissal alone could be complained of.

4. DISMISSAL AND NONSUIT (§ 60)—WANT OF PROSECUTION.

Where plaintiff after the striking of his amended petition on the ground of departure from the original petition failed to prosecute the suit, and such failure was not induced by the striking of such petition, the court properly dismissed the cause.

5. RAILROADS (§ 108) — CONSTRUCTION — DITCHES AND CULVERTS.

Under Rev. St. 1909, § 3150, requiring railroad companies to construct and maintain suitable openings across and through the right of way and roadbed and suitable ditches and drains along each side of the roadbed to connect with ditches, drains, or water courses so as to afford sufficient outlet to drain and carry off the water, including the surface water along the railroad whenever the draining thereof has been destroyed or rendered necessary by the construction of such railroad, where the lateral drain on the south side of the roadbed was not constructed in a negligent manner, was not an unsuitable one, and was not made to drain more territory or surface water than was necessary in complying with the statute, and there was no other ditch, drain, or water course affording an outlet for such lateral ditch, the company was not liable because the ditch after passing through the roadbed and leaving the right of way overflowed the land on the north side of the same; the opening through the roadbed and ditch on the right of way being sufficient, the company merely having done what it was authorized to do by the statute.

Appeal from Jasper Circuit Court; D. E. Blair, Judge.

Action by A. F. Poncot against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment dismissing the cause for failure to prosecute, plaintiff appeals. Affirmed.

Shannon & Phelps, of Carthage, for appellant. R. T. Railey, of St. Louis, and A. E. Spencer, of Joplin, for respondent.

ROBERTSON, P. J.

Plaintiff has appealed from the following judgment entered June 18, 1913: "It appearing to the court that the plaintiff has failed to appear and prosecute this cause, it is therefore ordered by the court that this cause be and the same is hereby dismissed; that the defendant be discharged and recover of and from the plaintiff the costs of this case; and that execution issue therefor."

The history of the case is as follows: On May 17, 1912, the plaintiff filed in the circuit court his original petition seeking to recover for damages to his crops caused by the flooding of his land by the defendant in the years 1907, 1908, 1909, 1910, and 1911. On the first day of the return term, June 3, 1912, the defendant appeared and answered by a general denial. At the November, 1912 term, on the commencement of the trial before a jury, upon motion to require the plaintiff to elect upon which cause of action he would proceed, the court sustained the same, and thereupon the plaintiff filed an amended petition, stating the several causes of action embraced in the original petition in five separate counts. Afterwards, during the progress of the trial, the plaintiff further amended his petition by striking out certain portions of each count of said amended petition and interlining certain words in each count, which interlineations were by the court stricken out on the ground that they constituted a departure from the original petition and stated a new and different cause of action. The court discharged the jury, made an order continuing the cause, and gave the plaintiff leave to file another amended petition. On December 14, 1912, the plaintiff filed another amended petition containing five counts, and on December 17, 1912, the defendant filed a motion to strike out each count of said last-amended petition for the reason assigned that said amended petition stated different causes of action from those contained in the original petition. On January 4, 1913, the last day of the November term of said court, the court sustained the said motion, and the plaintiff was given until the third day of the February, 1913, term of said court in which to file his bill of exceptions. The next record disclosed in the case is that of the filing of the bill of exceptions on February 17, 1913, the first day of the February, 1913, term of court, and the only other record is that of the judgment of dismissal, above set out, on June 18, 1913, for failure to prosecute said cause. Plaintiff has taken the necessary steps to perfect his appeal to this court from the judgment of dismissal, but no motion for a new trial was filed by him in the circuit court. This, we think, precludes a review by this court of the errors complained of here by the appellant.

Section 2083, R. S. 1909, makes it our duty to examine the record in all cases irrespective of any exceptions in motions for new trial or in arrest of judgment; but under section 2081, R. S. 1909, we overstep our bounds when we seek to decide questions which are wholly matters of exception but in which either no exceptions were saved, or of which no complaint was made in the motion for new trial. In short, we should be careful not to convict the trial court of an error of which full opportunity was not given, as provided for by law, for correction before the case reaches this court.

Thus, it is necessary that we determine whether the motion in this case to strike out the last amended petition of plaintiff from the files is a part of the record proper. Matters of exception, such as complaint of...