Ancell v. City of Cape Girardeau

48 Mo. 80

• Court: Supreme Court of Missouri
• Decided: March 15, 1871
• Status: Published

Opinion

CuRRiER, Judge,

delivered the opinion of the court.

The plaintiff sues to recover damages for an alleged false imprisonment. The defendants joined in a demurrer to the petition. The demurrer was sustained, and judgment was entered in favor of all the defendants. The plaintiff thereupon took his appeal without moving for a new trial.

I. The error complained of in the proceedings of the Circuit Court is not shown by a bill of exceptions, but appears upon the face of the record proper. In such cases no motion for a new trial is necessary. (Hann. & St. Jo. R.R. Co. v. Mahoney, 42 Mo. 467.)

2. The demurrer was based upon the theory that the petition showed no cause of action against the city of Cape Girardeau, and that the city, therefore, was not a necessary party to the suit.

That a good cause of action is alleged against two of the defendants is not questioned. (Eddy v. Beach, 7 Abbott’s Pr. 17; Shaw v. Jayncs, 4 How. Pr. 119.)

A good cause of action being shown against two of the defendants, the demurrer should have been overruled as to them, although sustained as to the other defendant. The case seems to fall fully within the principle of the decision in Bank of the State of Missouri v. Young’s Adm’r, 85 Mo. 371, where it was held that the judgment was erroneously entered in favor of both defendants, since the petition showed a good cause of action against one of them. The defendants had demurred jointly, and the demurrer was sustained as to both, and judgment entered accordingly in favor of both. The judgment was reversed. It was suggested as a matter of practice that it would be better for parties so situated to demur separately.

Judgment reversed and cause remanded.

The other judges concur.