State ex rel. Mosberg v. Owens ( 1918 )

ALLEN, J.

— This is an action npon the official bond of defendant Thomas J. Owens, as Constable of the Fifth Justice of the Peace District in the city of St. Lonis, the defendants being said constable and the sureties on his bond. The suit was instituted in the circuit court on November 17, 1915, and on December 11, 1915, the defendants filed a motion to strike out the petition upon the ground "that the petition is duplicitous.” Thereafter, on December 30, 1915, the motion to strike out was overruled, and on January 26, 1916, at the same December Term, 1916, of the circuit court, defendants not having pleaded, an interlocutory judgment by default was entered as to all of the defendants. Thereafter, on February 5,1916, at the same term, án inquiry was had as to plaintiff’s damages and final judgment was rendered for plaintiff against the defendants for the penalty of the bond, to-wit, $5000, to be satisfied upon the payment of the damages assessed, viz., $273.77. On February 9, 1916, after the lapse of the December term aforesaid, defendants filed a motion, verified by affidavit, to set aside the judgment. In support of this motion defendants filed certain affidavits and plaintiff filed counter affidavits. On February 23, 1910, this motion was overruled. The case reaches this court by virtue of an appeal here granted to defendants under the provisions of section 2043, Revised Statutes 1909.

The motion of defendants to set aside the final judgment by default proceeded upon the theory that the motion to strike out was- considered and overruled by the court without notice to defendants’ counsel, in violation of a rule of court. As to what occurred in this connection the facts are much in dispute, as appears by the affidavits mentioned above; but, for reasons to be noted, it is unnecessary to consider the matter. The motion was filed after the lapse of the term at which the interlocutory judgment and the final judgment were rendered, and hence could be effective, if at all, only as a petition for review authorized by section 2101, Revised Statutes 1909, and complying with the requirements of section 2104, Revised Statutes 1909.

The motion in question purports to he a mere motion, and not a petition for review. But apart from this, it fails to comply with section 2104, supra, in that it does not set forth facts showing a meritorious defense. It is alleged in general terms that defendants have a meritorious defense; hut this is not a “setting forth” of such defense within the meaning of the statute, supra. [See Icing Co. v. Kemper, 166 Mo. App. 613, 149 S. W. 1163.] Furthermore, since defendants appeared to the action and filed the motion to strike out, they are not within the purview of section 2101, supra, as parties entitled to file a petition for review. [See Jeude v. Sims, 258 Mo. 26, l. c. 38, 166 S. W. 1048.]

It follows that this motion can avail appellants nothing.

It is argued, however, that the petition fails 'to state a cause of action as for a breach of 'the condition of the bond sued upon. The petition, after pleading the execution of the bond sued upon and setting out in substance the condition thereof, avers that defendant Owens “did not in every respect discharge and perform his duties as constable according to law,” in respect to the matters, subsequently stated. It is averred that plaintiff obtained a judgment against one Kranzberg and one Cohen before a justice of the peace in and for the said district, which judgment was after-wards revived and an execution issued thereon which was received by the defendant constable; that said defendant failed and refused to serve a certain writ of garnishment on the execution, refused to sell certain perishable property levied upon by virtue of said execution, though ordered to do so by the justice of the peace, failed and refused'to levy on a certain motor truck owned by said Cohen, and thereafter wrongfully and unlawfully released all of the goods, wares and merchandise and other personal effects of said Gohen levied upon under the execution, which was the only property of Cohen subject to execution; that the judgment, amounting, -with interest and costs, to $275.40, remains wholly unsatisfied; that said Cohen, at the times mentioned, was possessed of goods, wares and merchandise, money.and credits and outstanding accounts sufficient to satisfy the judgment; and that “by reason of the failure and refusal of said constable to discharge his duties according to law” the plaintiff “has lost his debt and has been unable to collect the same or any part thereof.”

Whether this petition is in every respect in proper form, and whether every act of the defendant constable complained of is such as to constitute a breach of the condition of his bond, we are not called upon to decide. Obviously there are sufficient facts averred to render the petition good as stating a cause of action for dereliction of official duty on the part of the\, defendant constable, such as to constitute a breach or breaches of the bond sued upon.

Appellants further insist thát the court ,erred in overruling their motion to strike out the petition; and-that this motion is before us for the reason that it fulfills the office of a demurrer. Though the motion is preserved in á bill of exceptions filed, appellants are here without a motion for a new trial and without, an exception saved to the overruling of the motion to strike out. Consequently the ruling upon the latter motion is not here for review unless it be by reason of the rule upon which appellants rely. It is true that a motion sometimes fills the office of a demurrer, and consequently the action of the trial court thereupon is reviewed and adjudged by the rule pertaining to demurrers. [See Shohoney v. Railroad, 231 Mo. 131, 132 S. W. 1059; Burrows v. McManus, 249 Mo. 555, 155 S. W. 403; Knisley v. Leathe, 256 Mo. 341, 166 S. W. 257; State ex rel. v. Ellison, 266 Mo. 423, 181 S. W. 998.] A demurrer and the court’s action thereupon are, of course, matters of record proper, and as such are preserved for review in an appellate court; and if it can be said that this motion to strike out the petition, on the ground of duplicity, fills the' office of a demurrer, then the ruling thereon is subject to review here as a matter arising on the face of the record proper.

In Shohoney v. Railroad, supra, l. c. 148, it is said:

“It was early held that matter in a pleading stating no cause of action or defense was open to a motion to strike out as well as to a demurrer. [Sapington v. Jeffries, 15 Mo. l. c. 631; Niedelet v. Wales, 16 Mo. l. c. 215; Barley v. Cannon, 17 Mo. l. c. 597; Robinson v. Lawson, 26 Mo. l. c. 71; Ming v. Suggett, 34 Mo. l. c. 365; Howell v. Stewart, 54 Mo. l. c. 407.] Now, the rule is' that a demurrer not waived by pleading over, when stood on, preserves itself without the aid of a hill of exceptions or motion for a new trial. [State ex rel. v. Jones, 155 Mo. 570; Hannah v. Hannah, 109 Mo. l. c. 240 ; Houtz v. Hellman, 228 Mo. 655, and cases therein cited.] From the proposition that a motion to strike out may in some instances fill the office of a demurrer, the doctrine has been deduced that a motion which fills such office should‘be judged of by the rules pertaining to demurrers, i. e., when; a motion is to all intents and purposes a demurrer dispositive of the whole case on a matter of law, the rules relating to a demurrer may be applied to such motions. [Austin v. Loring, 63 Mo. l. c. 21; O’Connor v. Koch, 56 Mo. 258.]”

After a review of the prior cases dealing with the application of the rule of practice here under consideration, the court in the Shohoney case, l. c. 152, further said:

“All will agree that the general rule in Missouri, subject to exceptions, is that motions'must he preserved in a bill'of exceptions and called to the court’s attention by a motion for a new trial, else an assignment of error, based on a ruling on the motion, is lost for appellate purposes; and that the trend of the judicial mind is to refuse to carve out new exceptions to the general rule. To that end it has been ruled that a motion for judgment on the pleadings is not preserved except by a ground lodged in the motion for a new trial and by a hill (Sternberg v. Levy, supra; Godfrey v. Godfrey, 228 Mo. 507; Bank v. Klein, 33 Mo. 559); that a motion to quash the proceedings is in the same category (Tarkio v. Clark, 186 Mo. 285); that a motion to strike out an amended petition because of a departure stands on the same foot (Bick v. Dry, 134 Mo. App. 589); that a motion to quash an indictment stands on the same foot (State v. Fraker, 137 Mo. 258); so to review a judgment (Daggs v. Smith, 193 Mo. 494) and motions to set aside a non-suit, to quash executions, to dismiss are treated similarly.”

In the Shohoney case the motion was directed to but a part of a replication, while that before us seeks to have the entire petition stricken out, but the law touching the matter, as there expounded and declared, is, We think, against the contention of appellants herein.

This motion is not essentially a demurrer. It does not challenge the sufficiency of the petition as stating a cause of action. On the contrary it impliedly concedes that the petition states two or more causes of action commingled in one count. While duplicity was a ground for special demurrer at common law, under our code it is to be taken advantage of by motion to strike out. [See gection 1816, Revised Statutes 1909.] Such motion has not the character of a general demurrer, and we think that it cannot be said to be “dispositive of thé whole case on a matter of law” within the meaning of the authorities, supra. It is true that it is levelled at the entire petition, but it is not every motion to strike out an entire pleading that rises to the dignity of a demurrer or is to be treated as such. [See Bick v. Dry, 134 Mo. App. 589, 114 S. W. 1145; Bingaman v. Hannah, 270 Mo. 611, l. c. 627, 194 S. W. 276; Ewing v. Vernon Co., 216 Mo. 681, l. c. 686, 116 S. W. 518.] In the case last cited (l. c. 686) it is said: “A motion to strike out might be leveled at a frivolous pleading, or a second petition that was a departure from the first, or -a sham pleading. So, it might be leveled at trifling, trivial, nugatory, redundant or irrelevant matter or matter of duplicity or unnecessary repetition or the like; but it ought not to fill the well-defined and technical office of a demurrer in bringing to the attention of the court demurrable defects in a petition.” (Italics ours). While some of the language used in a prior paragraph of that opinion was, in effect, disapproved in the Shohoney case, l. c. 150, as being too broad in its scope, that which we have quoted was not criticized; and it appears to be entirely sound doctrine to hold that motions of the character there mentioned, including a motion to strike out a pleading on the ground of duplicity, ought not to be put in the same category as demurrers. To hold otherwise in the instant case would be to undertake to carve out a new exception to the general rule as to the right to have a motion reviewed on appeal, contrary to the trend of judicial decision on the subject. [Shohoney v. Railroad, supra, l. c. 152.] And, for the reasons noted, we think that we would not, in any event, be justified in putting in the excepted class a motion which strikes at a pleading for matter of duplicity.

We consequently hold that the ruling upon the motion to strike out is not here for review.

Upon the record before us we perceive no ground upon which we may rightfully disturb the judgment below, and it must therefore be affirmed. It is so ordered.

Reynolds, P. J., and Becker, J., concur.