Williams v. Chicago, B. & Q.R. Co.

• Decision Date: 18 May 1928
• Docket Number: 26324
• Parties: Effie Williams, by Wiley Williams, Her Next Friend, Appellant, v. Chicago, Burlington & Quincy Railroad Company
• Court: Missouri Supreme Court

6 S.W.2d 929

320 Mo. 46

Effie Williams, by Wiley Williams, Her Next Friend, Appellant, v. Chicago, Burlington & Quincy Railroad Company

No. 26324

Supreme Court of Missouri

May 18, 1928

Appeal from Circuit Court of City of St. Louis; Hon. M Hartman, Judge.

Affirmed.

J R. Weinbrenner and Bishop & Claiborne for appellant.

(1) Appellant's motion to strike out part of respondent's answer, being in the nature of a demurrer, is part of the record proper and an error committed in disposing of it is apparent on the face of the record, which this court will correct in the absence of exceptions. Shohoney v Railroad, 231 Mo. 131; Brewing Co. v. Ehlhardt, 139 Mo.App. 129; Swain v. Bartlett, 82 Mo.App. 642; Johnson v. Latta, 84 Mo. 143; Harned v. Shores, 75 Mo.App. 505; Butler v. Lawson, 72 Mo. 227; Brown v. Appleman, 83 Mo.App. 83; Land Co. v. Bretz, 125 Mo. 422; Lilly v. Menke, 126 Mo. 211; Broughton v. Brand, 94 Mo. 169; Nicol & Co. v. Hyre & Co., 58 Mo.App. 136; McKenzie v. Donnell, 151 Mo. 448; Benton County v. Morgan, 163 Mo. 670; State v. Burton, 222 S.W. 845. (2) A party is only required to demur or answer to new matter: (a) When the new matter constitutes a defense or counterclaim. Sec. 1232, R. S. 1919. (b) If party fails to demur or reply to new matter set out in an answer the defendant shall have such judgment as he is entitled to upon such statement. Sec. 1236, R. S. 1919. (3) The so-called new matter set out in paragraph 3 of respondent's answer constituted no defense to appellant's complaint, for the reason that the St. Louis Circuit Court, having first taken jurisdiction of the subject-matter and the parties, its jurisdiction could not be divested by any subsequent action taken in any probate court. State ex rel. v. Holtcamp, 266 Mo. 347; Railroad Co. v. Muse, 4 Am. Law Rep. 613; Gray v. Railroad Co., 43 So. 859; Plympton v. Hall, 21 L. R. A. 675; Wilson v. Chichester, 10 L. R. A. 573; Peck v. Jenness, 12 Law Ed. (U.S.) 846; Taylor v. Taintor, 21 Law Ed. (U.S.) 290; Ex parte Chetwood, 41 Law Ed. (U.S.) 788; Mo. Pac. Ry. Co. v. Fitzgerald, 40 Law Ed. (U.S.) 541.

H. J. Nelson and Douglas W. Robert for respondent.

(1) The motion to strike out parts of the answer referred to in the judgment, will not be considered by this court for the reason that plaintiff filed no term bill of exceptions preserving the motion and the exception to the ruling on it. Kline Cloak Co. v. Morris, 293 Mo. 478; State v. Zugras, 306 Mo. 492; Neighbors v. Lewis, 296 S.W. 456; State ex rel. v. So. Surety Co., 294 S.W. 123; Sweeney v. Sweeney, 283 S.W. 736; Miss. Valley Trust Co. v. Franke, 268 S.W. 420. (a) A motion to strike out a part of a pleading is not a part of the record proper and it can only be preserved by a term bill of exceptions. Shohoney v. Railroad, 231 Mo. 153. (b) Even if such motion, as is set out in plaintiff's abstract, were preserved in a bill of exceptions, this court would not review it, as it does not set out the parts of the answer attacked. Pearce v. McIntyre, 29 Mo. 423; Patterson v. Hollister, 32 Mo. 478; Anderson v. Stapel, 80 Mo.App. 115. (2) The appellant did not assign the overruling of the motion to strike out, as error in the motion for a new trial. Shohoney v. Railroad, 231 Mo. 152; Leahy v. Trust Co., 296 Mo. 561; Hawkins v. City of St. Joseph, 281 S.W. 420. (3) No exception was saved by a proper bill of exceptions to the entering of the judgment or the overruling of the motions for a new trial and in arrest, nor were the motions preserved by such a bill. This court, therefore, will not review the proceedings below. Leahy v. Mercantile Trust Co., 296 Mo. 561. (4) The defendant having pleaded new matter, which was a defense, upon the default and refusal to file a reply the defendant was entitled to a judgment upon the pleadings. Sec. 1236, R. S. 1919; Moore v. Sauborin, 42 Mo. 490; Ennis v. Hogan, 47 Mo. 513; Bird v. Powell, 180 Mo.App. 421. (5) The Probate Court of Iron County had jurisdiction to authorize the guardian of plaintiff to compound the claim. Sec. 391, R. S. 1919; Winter v. Ry. Co., 160 Mo. 59; Daffron v. M. W. A., 190 Mo.App. 303. (6) Such a motion as set out in appellant's abstract, even if preserved in a proper bill of exceptions, would not be sustained, as it would be a collateral attack upon the judgment of the probate court. Repetto v. Walton, 313 Mo. 182; State ex rel. v. Gray, 106 Mo. 534; Johnson v. Realty Co., 167 Mo. 325; Scott v. Crews, 72 Mo. 261; Johnson v. Beasley, 65 Mo. 250; Merriewether v. Block, 31 Mo.App. 170.

OPINION

Graves, P. J.

One phase of this record shows that plaintiff filed a petition herein June 1, 1922; September 6, 1922, defendant filed a motion to quash a notice to take depositions in the case, for reasons therein fully set out; that on September 8th there was a hearing upon said motion, and the same was overruled. The foregoing is mere history of the case, for the real case now before us begins with the filing of an amended petition. This petition was filed May 5, 1923. It is an action by the wife for the alleged negligent killing of her husband, and was against the present respondent, and two other defendants -- one corporate and one individual.

On May 21st defendant refiled its original separate answer to this amended petition. November 10th the plaintiff dismissed as to two of the defendants and left in her case, as the sole defendant, the Chicago, Burlington & Quincy Railroad Company, the respondent in the case now. After dismissing the two defendants from the case, the plaintiff then filed the following motion:

"Comes now the plaintiff in the above-entitled cause and first having been given leave of court, moves the court to strike from the answer of the Chicago, Burlington & Quincy Railroad Company, defendant herein, the following allegation which appears in paragraph three thereof, beginning with line 22 on page 2 and concluding with line 13 on page 4, consisting of the last 11 lines on page 2, all of page 3, and the first 13 lines of page 4 (all of which appears above in black-face type).

"The ground for this motion is that said allegation is immaterial, incompetent and irrelevant to the cause of action stated in the petition, and that to permit it to continue in said answer will do this plaintiff an irreparable injury and produce a miscarriage of justice."

This motion was overruled, and plaintiff in open court declined to plead further, and judgment was entered for the defendant upon the pleadings and this failure of the plaintiff to plead further.

Motions to set aside such judgment and for new trial and in arrest of judgment were filed (it is said) and overruled. A part of the foregoing is objected to as not being within the record. There is an additional abstract of record by respondent. We can and will make clear respondent's position later.

By appellant (plaintiff below) it is said that the following is the portion of the answer attacked by the motion to strike out, supra:

"3. Further answering, this defendant says that the plaintiff Effie Williams, is a minor, over the age of fourteen years, to-wit, the age of sixteen years, and a citizen of the State of Missouri, and a resident of Iron County, Missouri; that on, to-wit, June 7, 1922, A. C. Charlton, the father of said Effie Williams, duly presented an application to the probate court of said Iron County, Missouri, for the appointment of himself, the said A. C. Charlton, as guardian and curator of the person and estate of said Effie Williams, which said application said Effie Williams also signed, and in the same also requested the appointment of her said father as guardian and curator as aforesaid; that thereupon said probate court appointed said A. C. Charlton guardian and curator of the person and estate of said Effie Williams and made an order requiring the said A. C. Charlton to give bond in the sum of $ 5,500 for the faithful performance of his duties as such guardian and curator, which said bond said A. C. Charlton duly executed and which said bond was duly approved by said probate court and filed.

"That, thereafter, and on the 7th day of June, 1922, said A. C. Charlton, as guardian and curator as aforesaid of Effie Williams, duly presented to said probate court a petition in writing, representing to said court that one Elva Williams was the husband of said Effie Williams, and that said Elva Williams was killed in a collision between a truck upon which said Elva Williams was riding and an engine belonging to the defendant, Chicago, Burlington & Quincy Railroad Company, on or about the tracks of the defendant St. Louis Merchants' Bridge Terminal Railway Company, at Main and Tyler streets, in the city of St. Louis, Missouri, May 25, 1922. Said petition further states and alleges that the death of said Elva Williams was the result of negligence on the part of said defendants; that said defendants had offered to pay in compromise of all claims for the death of said Elva Williams the sum of $ 2750. Said petition further recited that said A. C. Charlton, as guardian and curator as aforesaid, 'had carefully investigated the facts in connection with the death of the said Elva Williams, and is of the opinion that it would be to the best interests of said Effie Williams to accept said offer.' Said petition further prays the said probate court to permit said A. C. Charlton, guardian and curator as aforesaid, to settle the said claim for said sum and to release said defendants from said claim.

"That on said 7th day of June, 1922, said probate court, after hearing the evidence, duly made an order authorizing the said A. C. Charlton, guardian and curator as aforesaid, to settle said claim as prayed for in said petition.

"That on said 7th day of June, 1922, this defendant and the...