Union Brewing Company v. Ehlhardt

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

120 S.W. 1193

139 Mo.App. 129

UNION BREWING COMPANY, Appellant, v. HARRY C. EHLHARDT et al., Respondents

Court of Appeals of Missouri, St. Louis

July 6, 1909

Appeal from the St. Louis City Circuit Court.--Hon. Geo. H. Shields Judge.

REVERSED AND REMANDED.

Reversed and remanded.

Henry E. Haas and F. A. & L. A. Wind for appellant.

The court erred in refusing plaintiff leave to file amended statement of its cause of action and sustaining defendants' motion to dismiss. The statute expressly provides that "the bill of items or account sued on may be amended on appeal to supply any deficiency or omission therein . . . provided no new item or cause of action not embraced or intended to be included in the original account or statement shall be added." R. S. 1899, sec. 4079; Heman v. Fanning, 33 Mo.App. 50; Keene v Sappington, 115 Mo.App. 33; Rechnitzer v Vogelsang, 117 Mo.App. 148; Phares v. Lumber Co., 118 Mo.App. 546; Warner v. Close, 120 Mo.App. 211. The statute is remedial and should be liberally construed. Dowdy v. Wamble, 110 Mo. 280; Broom's Legal Maxims (7 Ed.), 83; 26 Am. and Eng. Ency. of Law (2 Ed.), 676.

Walther & Muench for respondents.

The abstract does not show that the bill of exceptions incorporated in it was ever filed or ordered filed. There is therefore nothing before this court except the record proper and no errors appearing on that the judgment should be affirmed. Boothe v. Fulton, 85 Mo.App. 16; Jacob v. Railroad, 94 Mo.App. 567; Fast v. Gray, 105 Mo.App. 694; Hughes v. Henderson, 95 Mo.App. 312; Scraper Co. v. Kolkmeyer, 91 Mo.App. 286. Exception to the action of the court in refusing to permit the filing of an amended account was not properly saved by a term bill of exceptions and such action cannot be reviewed in this court. The filing of a motion to set aside the subsequent dismissal of the case and the exception to the overruling of that motion at a subsequent term did not have the effect of preserving an exception to the ruling on the amendment. Rigdon v. Ferguson, 172 Mo. 49; State v. Williams, 147 Mo. 14; Asphalt Co. v. Ullman, 137 Mo. 543; Piefka v. Knapp, Stout Co., 166 Mo. 7; Wentzville v. Walker, 123 Mo. 662; Casualty Co. v. Kacer, 169 Mo. 318; Holliday v. Moss, 96 Mo.App. 57. The statement filed with the justice stated no cause of action, contained nothing which would advise the defendants of the cause of action intended to be sued upon and would not bar a subsequent action. The circuit court did not err, therefore, in sustaining defendants' motion for dismissal. Nenno v. Railroad, 105 Mo.App. 540; Heimberger v. Harrison, 83 Mo.App. 544; Brashears v. Strock, 46 Mo. 221; Rechnitzer v. Candy Co., 82 Mo.App. 311; Evans v. Railroad, 67 Mo.App. 255; Moffitt v. Crider, 100 S.W. 1100; Bricken v. Cross, 163 Mo. 457. Amendments are not allowed as a matter of course, but are only permitted at the discretion of the court, and an appellate court will not interfere with the exercise of such discretionary power by the trial court unless it has been clearly abused. Caldwell v. McKee, 8 Mo. 334; Ensworth v. Rarton, 67 Mo. 622; 1 Ency. of Pl. and Pr., p. 525.

NORTONI, J. Reynolds, P. J., and Goode, J., concur.

OPINION

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. and 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 its 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; Paxon v. Talmage, 87 Mo. 13; s. c., 14 Mo.App. 586; Bick v. Dry, 134 Mo.App. 538, 589; 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. and 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. 596, 605; 3 Ency. Pl. and 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's, 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 exceptions 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, 134 Mo.App. 538, 587, 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; 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 ore tenus. It is therefore not in the form usually considered by the courts. However this may be, it was nevertheless a motion which invoked a ruling of the court to the effect that an amendment of the statement at that time was not allowable. There can be no doubt that this presented a matter of exception purely, identically as it would had the amendment been allowed. [In re Estate of Howard, 128 Mo.App. 482, 106 S.W. 116; Taylor v. Fox, 16 Mo.App 527; City of Springfield v. Ford, 40 Mo.App. 586, 587; Treice v. Holladay, 40 Mo.App....