Burns v. Patrick

27 Mo. 434

• Court: Supreme Court of Missouri
• Decided: October 15, 1858
• Status: Published

Opinion

Scott, Judge,

delivered the opinion of the court.

The plaintiff in this action can not recover on the ground that the defendants wrongfully and without force by disseizin obtained and continued in possession of the premises in dispute after demand made in writing for the deliverance of possession thereof, because there is no proof of any such demand in the bill of exceptions. There is a demand copied among the papers in the cause, but not being embodied in the bill of exceptions it can not be noticed by this court. Moreover, the complaint is so framed as not to bring it within that provision of the statute.

The complaint on which this proceeding is based shows that the plaintiff is not entitled to recover. The complaint is that the tenants of the plaintiff were turned out of possession ; and if this was so, then the tenants should have instituted this proceeding. It is no answer to this objection that it was not raised in the court below by demurrer or in arrest of judgment. It is well settled that when a record is brought into this court, and it appears from the face of the record that the plaintiff has no cause of action, the judgment will be reversed, although the point was not made in the court below. This has been long the practice of this court. As liberal as the present practice act is, the defendant, by not taking the exception that the petition does not state facts sufficient to constitute a cause of action by demurrer or answer, does not waive the same. (R. C. 1855, p. 1231, § 2.)

We do not deem it necessary to review other points made in the cause, as they were mostly founded on the language of the various instructions and involved no principle.

Judgment reversed;

the other judges concur.