Louisiana & Middletown Plank Road Co. v. Mitchell

20 Mo. 432

Opinion

Scott, Judge.

This was an action to recover call on a subscription for plank road stock. The defendant filed an answer to the plaintiff’s petition, and the plaintiff thereupon moved to strike out the answer of the defendant, which motion was overruled. The plaintiff then took a non-suit and sued out this writ of error.

1. Under the old practice, it was settled that a writ of error will not lie to the judgment of a court overruling a demurrer. (Palmer v. Crane, 8 Mo. Rep. 619.) Under the present practice act, a motion to strike out an answer for insufficiency is substituted in practice for a demurrer, and it has been held that a -writ of error or appeal will not lie on a voluntary non-suit taken upon the refusal of the court to strike out an answer as insufficient. (Schulter’s Adm'r v. Bockwinkle's Adm'r, 19 Mo. Rep. 647. Dumey v. Schoeffler, ante, p. 373.) The other judges concurring, the writ of error will be dismissed.