Bick v. Umstattd

Missouri Court of Appeals

Bick v. Umstattd

117 S.W. 642, 137 Mo. App. 270, 1909 Mo. App. LEXIS 206

CourtMissouri Court of Appeals

DecidedMarch 23, 1909

StatusPublished

Cited by1 cases

This text of 117 S.W. 642 (Bick v. Umstattd) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bick v. Umstattd, 117 S.W. 642, 137 Mo. App. 270, 1909 Mo. App. LEXIS 206 (Mo. Ct. App. 1909).

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Opinion

REYNOLDS, P. J.

— This case comes to this court on an order or judgment in the following form:

“Now on this second day of September, 1905, come the parties herein by their respective attorneys, and the motion heretofore filed by the plaintiff herein to strike out part of the third amended separate answer filed herein by defendant William Davis is taken up and is by the court sustained and the court upon its own motion rules that the petition filed herein is insufficient and does not state facts sufficient to constitute a cause of action against the defendants, wherefore the plaintiff declines and refuses'to plead further in this cause; and now on application of defendants this cause is by the court ordered dismissed.”

This is not a final judgment authorizing an appeal. Nothing follows this entry but a statement that the plaintiff files his application and affidavit for an appeal and the court, “having seen and heard said application and affidavit 'doth grant an appeal in this cause to the St. Louis Court of Appeals, and doth fix the bond in appeal herein at the sum of one hundred dollars, with leave to file the same within ten days after the adjournment of this term of court, subject to the approval of the clerk of this court.” It does not appear that a demurrer was filed by defendants to the petition, but the court, of its own motion, as will be seen by this order, “rules that the petition filed herein is insufficient and does not state facts sufficient to constitute a cause of action against the defendants, wherefore the plaintiff declines and refuses to plead further in this cause, and now, on application of defendants, this cause is by the court ordered dismissed.” As has been held in many cases, this is not a final judgment or decision, from [272]*272which an appeal lies. [See Finkelnburg, Missouri Appellate Practice (2 Ed.), pp. 57 and following, and authorities collated in note on p. 63; also Lyons et al. v. Rollinson, 109 Mo. App. 68, and cases there collated; State ex rel. v. Turner, 113 Mo. App. 53; A. A. Cooper Wagon & B. Co. v. Cornell, 111 S. W. 521, 131 Mo. App. 344.] Appeal dismissed.

All concur.

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REYNOLDS, P. J.

— This case comes to this court on an order or judgment in the following form:

“Now on this second day of September, 1905, come the parties herein by their respective attorneys, and the motion heretofore filed by the plaintiff herein to strike out part of the third amended separate answer filed herein by defendant William Davis is taken up and is by the court sustained and the court upon its own motion rules that the petition filed herein is insufficient and does not state facts sufficient to constitute a cause of action against the defendants, wherefore the plaintiff declines and refuses'to plead further in this cause; and now on application of defendants this cause is by the court ordered dismissed.”

This is not a final judgment authorizing an appeal. Nothing follows this entry but a statement that the plaintiff files his application and affidavit for an appeal and the court, “having seen and heard said application and affidavit 'doth grant an appeal in this cause to the St. Louis Court of Appeals, and doth fix the bond in appeal herein at the sum of one hundred dollars, with leave to file the same within ten days after the adjournment of this term of court, subject to the approval of the clerk of this court.” It does not appear that a demurrer was filed by defendants to the petition, but the court, of its own motion, as will be seen by this order, “rules that the petition filed herein is insufficient and does not state facts sufficient to constitute a cause of action against the defendants, wherefore the plaintiff declines and refuses to plead further in this cause, and now, on application of defendants, this cause is by the court ordered dismissed.” As has been held in many cases, this is not a final judgment or decision, from [272]*272which an appeal lies. [See Finkelnburg, Missouri Appellate Practice (2 Ed.), pp. 57 and following, and authorities collated in note on p. 63; also Lyons et al. v. Rollinson, 109 Mo. App. 68, and cases there collated; State ex rel. v. Turner, 113 Mo. App. 53; A. A. Cooper Wagon & B. Co. v. Cornell, 111 S. W. 521, 131 Mo. App. 344.] Appeal dismissed.

All concur.

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Bluebook (online)

117 S.W. 642, 137 Mo. App. 270, 1909 Mo. App. LEXIS 206, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bick-v-umstattd-moctapp-1909.

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