Finney v. Randolph

68 Mo. App. 557, 1897 Mo. App. LEXIS 393

• Court: Missouri Court of Appeals
• Decided: February 1, 1897
• Status: Published

Opinion

Smith, P. J.

The plaintiffs brought this action onacontractto recover of defendant the sum of $1,000.

statement. It appears from-the record before us that at the February term, 1894, of said circuit court, the defendant obtained continuance of the case, with leave of court to file answer to plaintiff’s petition in vaca^on 0f eourt after that term, and on March 23, 1894, the defendant filed his answer. At the September term, 1894, of said court, the defendant made application for a continuance of the case, which was overruled by the court, and thereupon a jury was selected and sworn to try the case. Then, by leave of court, the defendant withdrew his answer and filed a demurrer to plaintiff’s petition. The demurrer was overruled by the court, and the defendant filed an amended answer, a part of which — setting up t,hat there was a misjoinder of parties plaintiffs — was stricken out on the plaintiff’s motion and the trial proceeded. The jury found for plaintiffs in the sum of $1,095.50. Defendant filed motion for new trial, on which the case was continued until the next term of court, when the motion was sustained by the court “on the sole ground of the misjoinder of parties plaintiffs,” and on the further ground that it was announced by the court, when the demurrer was overruled, that if the court should conclude there was a misjoinder of parties plaintiffs, the fact that the defendant filed a second answer and went to trial would not be permitted to prejudice the right of defendant.

Erom this order of the court granting the defendant a new trial the plaintiffs appealed.

^¡IJoinSerTan: swer. demurrei. - If there was a misjoinder of parties plaintiff, the same was apparent upon the face of the petition, and whether there was or not such misjoinder was an objection that could be raised in such case only by demurrer; and since the defendnQ{. <Jemur f;0 petition, but filed his answer thereto, he was not therefore entitled to withdraw such answer and file a demurrer, for, by previously answering, he had conclusively waived the objection. Whether or not the plaintiffs were properly joined was a question that was not, after answer, open to further consideration by the court. R. 8., secs. 2048, 2047; Loan & Trust Co. v. Brown, 59 Mo. App. 461; State to use Saline Co. v. Sappington, 68 Mo. 454; Paddock v. Somes, 102 Mo. 226, 235; Dodson v. Lomax, 113 Mo. 555; Pike v. Martindale, 91 Mo. 268, Ryors v. Prior, 31 Mo. App. 555; Anderson v. McPike, 41 Mo. App. 328; Kellog v. Malin, 62 Mo. 429.

In the opinion of the court in the second of the above cited cases is found .this paragraph, viz.: “But if we concede that Saline county was not the proper relator, still this concession does not aid the defendants, and for this reason, if defendants were desirous of testing the question, they should have stood on their demurrer, since the alleged defect was patent on the face of the petition, and could only be taken advantage of by demurrer and not by answer. 2 Wag. Stat., secs. 6, 10, pp. 10, 14, 15. When, therefore, the demurrer was overruled and defendant answered, they waived and abandoned whatever vantage ground they may have acquired by demurring ( Ware v. Johnson, 55 Mo. 500), and could not raise the same question anew in their answer, in respect to defects.”

Applying this statement of the law thus extracted, and it is manifest that the defendants, by filing their answer, precluded themselves from afterward raising the objection of defect of parties plaintiffs, either by demurrer or answer. The right to raise the objection in the manner provided in the statute having been once waived, was gone and could not again be invoked. Nor could the court by its amendment hereinbefore referred to suspend the operation of the statute as to the case. We have been cited to no case sanctioning the practice of allowing a defendant to answer a plaintiff’s petition, and after doing so, withdraw such answer and demur for misjoinder of parties plaintiff. If the right to raise such objection survives the filing of an answer, then we have misread the words of the statute.

The order of the circuit court setting aside the verdict is reversed and the cause remanded, with directions to the circuit court to reinstate such verdict and give judgment thereof for plaintiff.

G-ill, J., concurs* Ellison, J., dissents.