City of Plattsburg v. Allen

Missouri Court of Appeals

City of Plattsburg v. Allen

84 Mo. App. 432, 1900 Mo. App. LEXIS 73

DecidedApril 30, 1900

StatusPublished

This text of 84 Mo. App. 432 (City of Plattsburg v. Allen) 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.

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City of Plattsburg v. Allen, 84 Mo. App. 432, 1900 Mo. App. LEXIS 73 (Mo. Ct. App. 1900).

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Opinion

SMITH, P. J.

The record in this case nowhere discloses, nor is it anywhere stated by counsel in their briefs, that there was a final judgment given on the demurrer. All that the record shows is that the defendant filed a demurrer to the plaintiff’s petition which was by the court sustained, arid to which ruling plaintiff excepted. As said in Kautsch v. Droste, 82 Mo. App. 412, a judgment on a demurrer to be final should be to the effect that: “Therefore it is considered by the court that the plaintiff take nothing by his writ, etc., and that the defendant go thereof without day,” etc. Palmer v. Crane, 8 Mo. 620.

An appeal or writ of error lies only from a final judg[433]*433ment. R. S. 1889, sec. 2246; Holloway v. Holloway, 97 Mo. 639; Mills v. McDaniels, 59 Mo. App. 331. Nor will either lie from a judgment overruling or sustaining a demurrer. Spears v. Bond, 79 Mo. 467; Berry v. Zimmerman, 43 Mo. 215; Robinson v. County Court, 32 Mo. 428. A writ of error to be effective must operate on a final judgment.

As the judgment on the demurrer was not a final judgment, the writ was, for that reason, ineffective. It results that we are without jurisdiction of the cause. The writ will accordingly be dismissed.

Ellison, J., concurs; Gill, J., not sitting.

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SMITH, P. J.

The record in this case nowhere discloses, nor is it anywhere stated by counsel in their briefs, that there was a final judgment given on the demurrer. All that the record shows is that the defendant filed a demurrer to the plaintiff’s petition which was by the court sustained, arid to which ruling plaintiff excepted. As said in Kautsch v. Droste, 82 Mo. App. 412, a judgment on a demurrer to be final should be to the effect that: “Therefore it is considered by the court that the plaintiff take nothing by his writ, etc., and that the defendant go thereof without day,” etc. Palmer v. Crane, 8 Mo. 620.

An appeal or writ of error lies only from a final judg[433]*433ment. R. S. 1889, sec. 2246; Holloway v. Holloway, 97 Mo. 639; Mills v. McDaniels, 59 Mo. App. 331. Nor will either lie from a judgment overruling or sustaining a demurrer. Spears v. Bond, 79 Mo. 467; Berry v. Zimmerman, 43 Mo. 215; Robinson v. County Court, 32 Mo. 428. A writ of error to be effective must operate on a final judgment.

As the judgment on the demurrer was not a final judgment, the writ was, for that reason, ineffective. It results that we are without jurisdiction of the cause. The writ will accordingly be dismissed.

Ellison, J., concurs; Gill, J., not sitting.

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84 Mo. App. 432, 1900 Mo. App. LEXIS 73, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-plattsburg-v-allen-moctapp-1900.

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