Opinion
December 31, 1927.
1. APPEAL: Extent of Review: Record Proper: Motions: Stipulations. No bill of exceptions having been filed, the review on appeal is limited to the record proper. And a motion to strike out certain parts of the answer, a motion for judgment on the pleadings and stipulations, and a motion for a new trial, can become a part of the record proper only by being incorporated in a bill of exceptions, and if not so incorporated cannot be considered, although printed in a so-called abstract.
2. APPEAL: Extent of Review: Record Proper: Motion to Strike Out: Equivalent to Demurrer. A motion to strike out the answer, if essentially a demurrer, is a part of the record proper, and will be so considered, although there is no bill of exceptions. But a motion to strike out only so much of the answer as consists of an affirmative defense, leaving, if sustained, another issue for trial under defendant's specific denial of liability for the amounts sued for in the petition, does not operate as a demurrer, and the trial court's ruling thereon is not for review unless the motion is preserved in a bill of exceptions.
3. ____: ____: ____: ____: Motion for Judgment: Stipulations. A motion to strike out a part of a pleading is not a part of the record proper, but a matter of exception, which can only be preserved for review in a bill of exceptions. And the fact that the parties entered into a stipulation in which they agreed that certain facts should be considered as true and correct, and that after plaintiff's motion to strike out a part of the answer was sustained, leaving in the answer another defense or issue for trial, plaintiff filed a motion for judgment on the pleadings and stipulation, and said motion was sustained, does not make said motion to strike out operate as a demurrer to the answer, or a part of the record proper, or the ruling of the court sustaining it subject to review unless it and a motion for a new trial assigning the ruling as error are preserved in a bill of exceptions.
Corpus Juris-Cyc. References: Appeal and Error, 4 C.J., Section 1726, p. 115, n. 75; p. 117, n. 85; Section 1728, p. 119, n. 16; Section 1769, p. 163, n. 81; Section 1771, p. 165, n. 2.
Appeal from Webster Circuit Court. — Hon. C.H. Skinker, Judge.
AFFIRMED.
Haymes Dickey for respondent.
(1) In appellant's brief there is no assignment of errors alleged to have been committed by the trial court. Only general conclusions of law appear in lieu thereof. This does not comply with either the law or the rules of this court. The appeal should be dismissed. Rules 15 and 16; Vahldick v. Vahldick, 264 Mo. 529; Hamilton v. Crowe, 175 Mo. 634; Hiemenz v. Harper, 204 S.W. 723. (2) The motion to strike out part of appellant's answer is not open for review, because such motion is not a part of the record proper, but is a matter of exception and can only be preserved by a bill of exceptions. Interstate Ry. Co. v. Railroad Co., 251 Mo. 707; Williams v. Ry. Co., 112 Mo. 463; Mutual Ins. Co. v. Tuemler, 251 S.W. 727; Sotham v. Drovers Tel. Co., 239 Mo. 606; Carder v. Drainage Dist., 262 Mo. 542. (3) The motion for judgment on the pleadings and stipulations is not before this court for review, because it can be brought to the attention of an appellate court only by an exception to the ruling thereon duly preserved in a bill of exceptions. Hodson v. McAnerney, 167 Mo. App. 468; Godfrey v. Godfrey, 228 Mo. 507.
Edwin W. Mills for appellant in reply.
In the trial court, defendant presented but one defense to respondent's action, viz., that Samuel N. Dickey, since deceased, while prosecuting attorney of appellant county, had failed to comply with Sec. 735, R.S. 1919, and that he had thereby forfeited his salary as such officer, under the provisions of Section 737. This sole defense was by the trial court stricken out on motion of respondent; defendant refused to further plead, whereupon the lower court rendered judgment for plaintiff upon the pleadings in the amount prayed; appellant in its motion for new trial specifically excepted to such action of the trial court; the errors alleged to have been committed by the trial court were, striking out appellant's sole defense set up in its answer, rendering judgment upon the pleadings, and in refusing appellant a new trial. (2) The motion to strike out part of appellant's answer is here open for review, though no bill of exceptions was filed. It is in the nature of a demurrer to appellant's answer, and is a part of the record proper. "The legal character of a pleading is to be determined by its substance and not name, and a motion to strike out or dismiss may fill the office of a demurrer, and be so treated, where it is, to all intents and purposes a demurrer, and is dispositive of the whole case as a matter of law." State ex rel. v. Ellison, 266 Mo. 429; In re Estate of Howard, 128 Mo. App. 490; 1 Bacon's Missouri Practice (1912 Ed.) sec. 580, p. 690; St. Louis Ry. Co. v. Lewright, 113 Mo. 660; Harned v. Shores, 75 Mo. App. 550; Bohm v. Stevens, 181 Mo. App. 236; Brown v. Appelman, 83 Mo. App. 79. "The record proper is the petition, summons and subsequent pleadings, including the verdict and judgment." 1 Bacon's Missouri Practice, sec. 580, p. 691; South Co. v. Pretz, 125 Mo. 691; Bateson v. Clark, 37 Mo. 31. "The question whether the pleadings support and warrant the judgment is one which arises on the record proper, and may be tested by writ of error or appeal from the judgment without any exception." 2 Cyc. 718. In applying the principle stated in the text it is held that where judgment is rendered on the pleadings no exceptions are necessary to preserve for review error in the rendition of such judgment, because the error is apparent of record. Nylan v. Renhard, 10 Colo. App. 46; Johnson v. Manning, 2 Ida. 1073; Murray v. Southerland, 125 N.C. 175; Upper Appomattox Co. v. Buffaloe, 121 N.C. 37; Thornton v. Brady, 100 N.C. 38; Donkle v. Milem, 88 Wis. 33.
The original plaintiff in this case, Samuel N. Dickey, filed suit against Webster County, Missouri, in the circuit court of that county, for the balance alleged to be due and owing to him on his salary as prosecuting attorney of the county. He died on December 13, 1925, and the cause was revived in the name of his son and administrator, Chas. W. Dickey. In his amended petition, the administrator seeks to recover the sum of $737.89, as the total of the monthly balances alleged to be due on said salary, together with interest thereon at the rate of six per cent per annum. On the administrator's motion, certain parts of the county's answer were stricken out. The administrator then moved for judgment on the pleadings and stipulations. This motion, also, was sustained and judgment rendered in favor of the administrator for the sum of $737.89. After its motion for a new trial was overruled, the county appealed, but filed no bill of exceptions.
The abstract of the record filed by appellant, in connection with its brief and argument, consists of the respondent's amended petition, appellant's answer to said petition, a stipulation signed by the parties, in which they agree that certain facts shall be considered as true and correct, respondent's motion to strike out certain parts of appellant's answer and the court's order sustaining the same, respondent's motion for judgment on the pleadings and stipulations and the judgment rendered, appellant's motion for a new trial and the court's order overruling the same, and appellant's application for an appeal and the court's order granting appellant an appeal to this court.
In connection with his brief and argument, respondent filed an additional abstract of the record, which consists only of appellant's answer as it appears when the parts stricken out are omitted.
Respondent also filed a motion to dismiss the appeal in this case "for the reason that the appellant in its brief has not furnished the court with a clear and concise statement of the points intended to be insisted on in the argument, and has not set forth the errors alleged to have been committed by the trial court as is required by the statutes of the State of Missouri and by Rule No. 15 of this court." This motion, by order of the court, was taken as submitted with the case.
I. Our examination of appellant's brief discloses that it is subject to some criticism in the particulars mentioned in respondent's motion to dismiss the appeal. However, under the view of the case expressed by counsel for appellant, his Brief. brief, taken as a whole, complies, substantially, with the rules of this court. The motion is, therefore, overruled.
II. This brings us to a consideration of the case on the record before us. Manifestly, our review is limited to the record proper, no bill of exceptions being filed. Under the general rule, the motion to strike out certain parts of the answer, the motion for judgment on the pleadings and stipulations, and the motion for a new trial, included in appellant's so-called abstract of the Extent of record, could only become a part of the record by Review: virtue of a bill of exceptions, in which such No Bill of motions and exceptions to the rulings thereon are Exceptions. properly preserved.
Counsel for appellant, in his reply brief, contends that the motion to strike out, in this case, served the purpose of a demurrer, that it disposed of the case, and is, consequently, a part of the record proper, of which we must take notice. If the motion to strike out is essentially a demurrer, as Motion to counsel contends, then it is open to review here as Strike Out: a part of the record proper, This exception to the Equivalent general rule is supported by well established to Demurrer. authority in this State. But, as we view the motion, in connection with the answer stricken at, it did not fill the office of a demurrer, and, therefore, does not invoke the exception to the general rule.
The petition, in substance, alleges that Webster County is a governmental subdivision of the State of Missouri; that Samuel N. Dickey died on December 13, 1925, and that respondent is the duly appointed, qualified and acting administrator of his estate; that the said Samuel N. Dickey was the duly elected, qualified and acting Prosecuting Attorney of Webster County from January 1st to December 13, 1925, and that, as compensation for performing the duties of said office, he was legally entitled to an annual salary of $2500, in monthly payments of $208.33 1/3; that he was justly entitled to receive a total of $2387.89, as salary for his services, during the time of his incumbency in said office; that, at the time of his death, aforesaid, he had received only $1650 for said services, covering monthly payments of $150 each, beginning February 1, 1925, and ending December 1, 1925; that said county, acting through its county court, refused to pay him the balance of $58.33 1/3 due on said monthly salary payments; and that there is now due his administrator the sum of $737.89, the same being the unpaid balance on said salary. In the prayer of the petition, the administrator asks judgment for $737.89, together with interest at the rate of six per cent per annum on said unpaid monthly balance on said salary.
The answer specifically admits all of the allegations of the petition, excepting those allegations which relate to the balance due on said salary. As to these allegations, the answer contains a specific denial, in the following language:
"Defendant denies that it owes plaintiff the amounts sued for in said first amended petition or any part thereof."
As a special affirmative defense, the answer states that the said Samuel N. Dickey failed to file, with the county court, quarterly reports of all fees collected and all fees due and uncollected in his office, on March 31st, and June 30, 1925, as required by Section 735, Revised Statutes 1919, and did not file any report whatever of said fees until August 13, 1925; and further states that, by reason of his failure to file said reports, he forfeited his salary under the provisions of Section 737, Revised Statutes 1919.
The motion to strike out mentions specifically and with particularity only those parts of the answer which relate to said special affirmative defense.
From this reference to the pleadings and to the motion, it is apparent at once that, regardless of the court's ruling on this motion, there was another issue for trial under the county's specific denial of liability for "the amounts sued for in said amended petition or any part thereof." It follows that the motion to strike out certain parts of the answer did not operate as a demurrer in this case, and that the motion and the trial court's ruling thereon are not proper subjects for our consideration. The general rule, referred to above, is well stated in the case of Interstate Railway Co. v. Railroad, 251 Mo. l.c. 718, 158 S.W. l.c. 352, as follows:
"A motion to strike out part of a pleading is not a part of the record proper, but is matter of exception which must not only be preserved in a bill of exceptions, but also be called to the trial court's attention in a motion for new trial, and the motion for new trial and the exception to the overruling of same must be preserved by proper bill of exceptions before the matter can be reviewed here."
See also the cases of Carder v. Drainage District, 262 Mo. 542, 172 S.W. 13; Sotham v. Telegram Co., 239 Mo. 606, 144 S.W. 428; Shohoney v. Railroad, 231 Mo. 131, 132 S.W. 1059.
Counsel for appellant, in his reply brief, also refers to respondent's motion for judgment on the pleadings and stipulations and appellant's motion for a new trial. What we have said concerning the motion to strike out applies with equal force to the motion for judgment on the pleadings and stipulations. [Godfrey v. Godfrey, 228 Mo. 507, 128 S.W. 970.] And it is elementary that a motion for a new trial cannot be considered on appeal unless such motion and the exception to the trial court's action in overruling the same are properly preserved in a bill of exceptions. [State ex. inf. v. Morgan, 268 Mo. 265, 187 S.W. 54.]
No error appears in the record proper. The petition states a cause of action against appellant and the judgment rendered below is fully supported by the allegations of the petition.
The judgment is affirmed. Higbee and Davis, CC., concur.
The foregoing opinion by HENWOOD, C., is adopted as the opinion of the court. All of the judges concur.