Rozier v. Nations

• Decision Date: 06 July 1915
• Docket Number: No. 17387.,17387.
• Citation: 178 S.W. 740
• Parties: ROZIER v. NATIONS et al.
• Court: Missouri Supreme Court

178 S.W. 740

ROZIER v. NATIONS et al.

No. 17387.

Supreme Court of Missouri, Division No. 2.

July 6, 1915.

Rehearing Danied July 17, 1915.

Appeal from Circuit Court, St. Francois County.

Action by Edward A. Rozier against G. O. Nations and another. From a judgment for defendants, plaintiff appeals. Appeal dismissed.

B. H. Boyer, of Farmington, for appellant. W. L. Coley, of St. Louis, and G. O. Nations, of Flat River, for respondents

FARIS, P. J.

Plaintiff sued defendants in the St. Francois circuit court for an alleged libelous publication. Demurrers, seriatim, it seems, being sustained to the divers petition of plaintiff up to and including the third, he appealed from a judgment holding his third amended petition bad. This petition is not before us. The record contains the second amended petition; but I; is averred that the third or last petition, that, to wit, which was ruled by the court nisi to be insufficient (and which ruling forms the basis for this appeal) has been lost. This condition of the record has induced action on respondents' part. They have filed a motion, taken by us upon submission with the case, to dismiss this appeal because the plaintiff (appellant here) has failed and neglected to bring up for our review a copy Of the third petition, or any proper record upon which such review may be had. So this question confronts us in limine.

From the record before us, we do not know and cannot ascertain, and therefore cannot rule, whether the third amended petition is good or bad. The second amended petition, which is before us, may be sufficient (but upon this we express no opinion), but we are precluded from considering it. This is so for one, at least, of two reasons: (a) No appeal was taken from the court's action in sustaining a demurrer (if one was filed) to the petition before us; or (b) this petition was abandoned by plaintiff's act in filing a third amended petition. An abandoned pleading ceases ordinarily to constitute any part of the record till made so by the adversary party's offering it in evidence as an admission against interest, and its subsequent incorporation as evidentiary matter in a bill of exceptions. Collins v. Andriano, 175 S. W. 194, not yet officially reported. In short, when abandoned, a pleading ceases to be a part of the record proper, but may become evidence. If it be urged, and if thus the fact be, that the bone of contention is whether the matter set out in plaintiff's several petitions is libelous or not, under our rules and the law we cannot rule that point. Such a condition would but make of the question a bald moot question only, and we do not sit...