Union Brewing Co. v. Ehlhardt

• Decision Date: 06 July 1909
• Citation: 120 S.W. 1193,139 Mo. App. 129
• Parties: UNION BREWING CO. v. EHLHARDT et al.
• Court: Missouri Court of Appeals

120 S.W. 1193

139 Mo. App. 129

UNION BREWING CO. v. EHLHARDT et al.

St. Louis Court of Appeals. Missouri.

July 6, 1909.

1. APPEAL AND ERROR (§ 256) — QUESTIONS REVIEWABLE—BILL OF EXCEPTIONS.

The rule that an exception to the striking out of a pleading must be preserved by bill of exceptions filed at the term at which the ruling was made, or within the time extended for that purpose, does not apply, where the motion to strike out is equivalent to a demurrer, in which case the ruling is reviewable without preserving an exception thereto.

2. APPEAL AND ERROR (§ 248)—QUESTIONS REVIEWABLE—EXCEPTIONS.

Where the error complained of appears on the face of the record, it will be considered on appeal, though no exceptions were taken to the ruling of the court.

3. APPEAL AND ERROR (§ 544)—QUESTIONS REVIEWABLE—BILL OF EXCEPTIONS.

An error in a judgment given solely on the pleadings is, as a general rule, reviewable on appeal without a bill of exceptions.

4. APPEAL AND ERROR (§ 255)—QUESTIONS REVIEWABLE—EXCEPTIONS.

Objections to the rulings of the court on the allowance of amendments must be saved by exception, or they are not reviewable.

5. APPEAL AND ERROR (§ 544)—QUESTIONS REVIEWABLE—BILL OF EXCEPTIONS.

Denial in a circuit court of an ore tenus motion for leave to amend the statement of the account sued on in justice's court presents a matter of exception merely, and is not reviewable in the absence of a bill of exceptions.

6. NEW TRIAL (§ 12)—MOTION—SUSPENSION OF JUDGMENT.

A judgment remains suspended during the interim after filing a motion for new trial and until it is overruled.

7. EXCEPTIONS, BILL OF (§ 38)—TIME FOR FILING.

Under Rev. St. 1899, §§ 727, 728 (Ann. St. 1906, pp. 716, 720), providing that the exception to the opinion of the court shall be written and filed during the term at which it is taken, etc., exceptions taken, which fall within the purview of a motion for new trial are continued with that motion, and may be presented for review in the appellate court by bill of exceptions filed at the term at which the motion was overruled.

8. EXCEPTIONS, BILL OF (§ 38)—TIME FOR FILING.

A continuance of the motion for new trial to a subsequent term, after denial of a motion for leave to file in the circuit court an amended statement of the account sued on in justice's court and the dismissal of the action, continues the right to file a bill of exceptions after the motion for new trial is overruled.

9. JUSTICES OF THE PEACE (§ 91)—PLEADING —SUFFICIENCY.

In an action in justice's court for debt, a statement sufficiently definite to inform defendant of the nature of the demand and to bar another action on the same account is sufficient.

10. STATUTES (§ 236)—REMEDIAL STATUTES— CONSTRUCTION.

A remedial statute must be liberally construed, with a view of suppressing the mischief sought to be remedied and of advancing the remedy, and the court may look to the prior state of the law on the subject, the mischief which it entailed, and the remedy which it sought to provide.

11. JUSTICES OF THE PEACE (§ 174)—APPEALS —AMENDMENTS OF PLEADINGS IN CIRCUIT COURT—STATUTES.

Under Rev. St. 1899, § 4079 (Ann. St. 1906, p. 2223), providing that the statement of the cause of action in justice's court may be amended on appeal to supply any deficiency therein, etc., amendments may be allowed in the circuit court when the original statement filed before the justice is insufficient to support a judgment, and such amendments are denied only when they would change the cause of action, or where there was no statement filed before the justice.

Appeal from St. Louis Circuit Court; Geo. H. Shields, Judge.

Action by the Union Brewing Company against Harry C. Ehlhardt and another. From a judgment of dismissal, plaintiff appeals. Reversed and remanded.

Henry E. Haas and F. A. & L. A. Wind, for appellant. Walther & Muench, for respondents.

NORTONI, J.

This is a suit on account. It originated before a justice of the peace, and found its way into the circuit court. In that court the defendant filed a motion by which he challenged the sufficiency of the statement of account sued upon, and moved the court to dismiss the action on that ground. The court sustained this motion, whereupon plaintiff asked leave to file an amended statement of account, and tendered a sufficient statement to that end. The court denied plaintiff's request, and dismissed the suit on the theory that the original statement of account filed before the justice was so indefinite as to preclude the right of amendment. Plaintiff excepted at the time to the ruling of the court in denying him the privilege to amend, and within four days thereafter, at the same term, filed a motion for rehearing or new trial on that question. Plaintiff filed no term bill of exceptions, however, to the ruling of the court denying him the right of amendment. The motion for rehearing or new trial was continued by the court to a subsequent term, and was then overruled, to which action of the court in overruling the motion for rehearing plaintiff duly excepted. At this term of the court at which the motion for rehearing was overruled plaintiff prepared and tendered his bill of exceptions. The court signed the bill and ordered it filed. The bill was duly filed during the term at which the motion for rehearing was overruled, and at a term subsequent to that at which the court denied plaintiff's right to amend the defective statement of account.

The first question presented relates to the right of this court to review the ruling which denied plaintiff's application to amend, in view of the fact that no term bill of exceptions was preserved thereto. It is argued that as plaintiff failed to file his bill of exceptions during the term at which the ruling was made, or within such time thereafter as the court, by order of record, might have granted, the question is not open for review here. It is true as a general proposition that an exception must be preserved to the action of the court in striking out a pleading by bill filed at the term at which the ruling was made, or within the time extended for that purpose. Asphalt Paving Company v. Ullman, 137 Mo. 543, 564, 38 S. W. 458; 3 Ency. Pl. & Pr. 401. However, we believe there may be exceptions to that rule. There are many motions to strike out pleadings which go exclusively to the sufficiency of the pleadings on their face, and invoke no collateral matter. In such cases the motion to strike out serves the office of a demurrer. Austin v. Loring, 63 Mo. 19; Paxson v. Talmage, 87 Mo. 13; Id., 14 Mo. App. 586; Bick v. Dry (Mo. App.) 114 S. W. 1145. The rule is well established that, where the error complained of appears on the face of the record, it will be considered on appeal though no exceptions whatever were taken to the action of the court at the time. Bateson v. Clark, 37 Mo. 31. The rule is thus stated in 3 Ency. Pl. & Pr. 404: "It is a general rule of appellate procedure that a bill of exceptions is useless, and indeed none should be brought up to the appellate court, where all the facts constituting the alleged error appear on the face of the record proper. The reason for this rule is obvious, since the only purpose of the bill is to bring before the court in an authenticated manner facts which, in the ordinary course of proceeding, would not otherwise appear of record in the case."

It is generally true, where the error alleged is based on a judgment given solely on the pleadings, it is reviewable on appeal without a bill of exceptions. Swaggard v. Hancock, 25 Mo. App. 605; 3 Ency. Pl. & Pr. 407. In keeping with this doctrine it has been frequently ruled that, where the case is dismissed on a mere motion which performs the office of a demurrer, and results in the determination of the case, the action of the trial court thereon may be reviewed, even though no motion for new trial has been filed. O'Connor v. Koch, 56 Mo. 253, 262; In re Estate of Howard, 128 Mo. App. 482, 106 S. W. 116. Indeed it is true in the O'Connor Case an exception was properly preserved to the ruling in the bill. However, on principle, we see no valid reason why the judgment might not have been reviewed in the absence of exception, as well as in the absence of a motion for new trial, which serves the purpose of calling attention of the court to matters of exception only. See, also, to the same effect, Aultman v. Daggs, 50 Mo. App. 280, 288; In re Estate of Howard, 128 Mo. App. 482, 490, 106 S. W. 116. We believe on the authorities that, where the motion to strike out the pleading is equivalent to a demurrer, and performs the office of a demurrer solely, without inviting or inducing the court to rule on a collateral matter, the question may be reviewed on appeal, although no exception is preserved to the ruling, precisely as it may be in the absence of a motion for new trial. See Bick v. Dry (Mo. App.) 114 S. W. 1145. Although this matter has been presented in the briefs, it is really unimportant here, for the reason the ruling of the court complained of is not that which declared the plaintiff's original statement of account insufficient, but is rather the ruling which denied plaintiff's right to amend. It seems to be conceded that the court correctly ruled the statement to be insufficient, and the precise question presented for decision relates to the ruling of the court in denying the right of amendment. As a rule objections to the rulings of the court on the allowance of amendments must be saved by exceptions. Taylor v. Fox, 16 Mo. App. 527; City of Springfield v. Ford, 40 Mo. App. 586; Holliday v. Mansker, 44 Mo. App. 465; Nichols v. Stephens, 123 Mo. 96, 25 S. W. 578, 27 S. W. 613, 45 Am. St. Rep. 514; Aultman v. Daggs, 50 Mo. App. 280; In re Estate of Howard, 128 Mo. App. 482, 106 S. W. 116.

Now plaintiff's motion in this case to be permitted to amend the defective statement was not reduced to writing, but, on the contrary, seems to have been...