Mumford v. Keet

71 Mo. App. 535, 1897 Mo. App. LEXIS 501

• Court: Missouri Court of Appeals
• Decided: March 9, 1897
• Status: Published

Opinions

Bond, J.

Tpííád¡ngctice: This is the second appeal in this case. When it was here before it was remanded to enable plaintiffs to file an amended petition. This has been done by adding to the statements of the former petition (65 Mo. App. 502) an averment that in order to escape eviction, plaintiffs were compelled to pay $600 in purchasing an outstanding paramount title to the land acquired by plaintiffs' under defendant’s covenant for warranty and seizin. Judgment is prayed for this sum and interest. Defendant filed an extended answer, which in addition to a denial of plaintiffs’ right to sue and that they had purchased the outstanding title, contained much other matter, which was stricken out on plaintiffs’ motion, and need not be recited, since we can not re-

view that ruling of the court, as defendant when asked by the court whether he desired to stand upon his answer so stricken out, replied, that he “desired to proceed to trial on the part of the answer not so stricken out,” while preserving his exceptions to the action of the court. This defendant could not do under our practice. The motion to strike out was in legal effect a demurrer. When it was sustained, one of two courses was left to defendant, either to stand on his exception to the ruling, in which case it would have been reviewable on appeal, or to file a new answer, in which event he would have waived any exception to the ruling striking out the former. These rules result from the well settled law that motions to strike out are governed by the law applicable to demurrers. Paddock v. Somes, 102 Mo. loc. cit. 237; Paxon v. Talmage, 87 Mo. loc. cit. 13. As defendant refused to stand on his answer, the only inquiry is, did he have a right, without filing another, “to proceed to trial on the part of the answer not stricken out! ’ ’ This question is answered by the language of the statute setting forth a rule of practice in such cases. The statute provides, that when such pleading, in whole or part, is stricken out on motion, “the party may file a further like proceeding within such time as the court may direct; and in default thereof, the court shall proceed with the cause in the same manner as if no such original pleading had been filed.” R. S. 1889, sec. 2066. Hence, when defendant insisted on going to trial without filing a further like proceeding, the express terms of the statute required the court to try the case as if no pleading was on file. In other words, to enter a default. The record shows that an inquiry of damages was had and a final judgment rendered for plaintiffs, from which defendant appealed to this court.

^ment*of'd" cfujury!”610 It is insisted that defendant was entitled to have a jury called on the proceeding to assess damages. There is nothing in the record to show that deCendant, after his default, asked for the aid of a jury. The court did not, therefore, commit error in failing to call one on the issue as to damages. Brown v. King, 39 Mo. 380; R. S. 1889, secs. 2133-2215.

Tfo damígesTas Sm^o0jartfc“d' i>ate; presump. It is further argued that defendant wTas entitled to participate in the trial on the inquiry of damages. The record before us does not show that defendant made any offer of evidence on the trial of this issue, nor that he proffered to cross-examine the witnesses produced by plaintiffs. It does appear that defendant, after his default, “insisted Up0n to proceed with the trial of said cause on the pleadings as they stood.” This proposal falls far short of a request to introduce evidence in mitigation of damages or cross-examine plaintiffs’ witnesses. This defendant was clearly entitled to do, and had he abandoned his position as to the triability of this cause on the portion of the answer not stricken out, and made a sufficient offer to take part in the trial of the issue as to damages, we must assume that the learned judge would have granted his request. But we can not put the trial judge in the wrong, unless the record affirmatively shows error on his part in the refusal of a specific offer by defendant to participate in the trial of the issue as to damages. As the record is deficient in this respect, the point under review must be ruled against defendant. The judgment .will therefore be affirmed. Judge Bland concurs; Judge Biggs dissents. He thinks this opinion is opposed to the decision of State ex rel. v. Finn, 19 Mo. App. 560, and asks that the cause be certified to the supreme court, which is accordingly done.