State ex rel. v. Owens.

ruling thereon is subject to review here as a matter arising on the face of the record proper.

In Shohoney v. Railroad, supra, 1. c. 148, it is said:

"It was early held that matter in a pleading stating no cause of action or defense was open to a motion to strike out as well as to a demurrer. [Sapington v. Jeffries, 15 Mo. 1. c. 631; Niedelet v. Wales, 16 Mo. 1. c. 215; Barley v. Cannon, 17 Mo. 1. c. 597; Robinson v. Lawson, 26 Mo. 1. c. 71; Ming v. Suggett, 34 Mo. 1. c. 365; Howell v. Stewart, 54 Mo. I. c. 407.] Now, the rule is that a demurrer not waived by pleading over, when stood on, preserves itself without the aid of a bill of exceptions or motion for a new trial. [State ex rel. v. Jones, 155 Mo. 570; Hannah v. Hannah, 109 Mo. 1. c. 240; Houtz v. Hellman, 228 Mo. 655, and cases therein cited.] From the proposition that a motion to strike out may in some instances fill the office of a demurrer, the doctrine has been deduced that a motion which fills such office should be judged of by the rules pertaining to demurrers, i. e., when a motion is to all intents and purposes a demurrer dispositive of the whole case on a matter of law, the rules relating to a demurrer may be applied to such motions. [Austin v. Loring, 63 Mo. 1. c. 21; O'Connor v. Koch, 56 Mo. 258.]” After a review of the prior cases dealing with the application of the rule of practice here under consideration, the court in the Shohoney case, 1. c. 152, further said: 'All will agree that the general rule in Missouri, subject to exceptions, is that motions must be preserved in a bill of exceptions and called to the court's attention by a motion for a new trial, else an assignment of error, based on a ruling on the motion, is lost for appellate purposes; and that the trend of the judicial mind is to refuse to carve out new exceptions to the general rule. To that end it has been ruled that a motion for judgment on the pleadings is not preserved except by a ground lodged in the motion for a new trial and by a bill (Sternberg v. Levy, supra; Godfrey v. Godfrey, 228 Mo. 507; Bank v. Klein, 33 Mo. 559);

State ex rel. v. Owens.

that a motion to quash the proceedings is in the same category (Tarkio v. Clark, 186 Mo. 285); that a motion to strike out an amended petition because of a departure stands on the same foot (Bick v. Dry, 134 Mo. App. 589); that a motion to quash an indictment stands on the same foot (State v. Fraker, 137 Mo. 258); so to review a judgment (Daggs v. Smith, 193 Mo. 494) and motions to set aside a non-suit, to quash executions, to dismiss are treated similarly.”

In the Shohoney case the motion was directed to but a part of a replication, while that before us seeks to have the entire petition stricken out, but the law touching the matter, as there expounded and declared, is, we think, against the contention of appellants herein.

This motion is not essentially a demurrer. It does not challenge the sufficiency of the petition as stating a cause of action. On the contrary it impliedly concedes that the petition states two or more causes of action commingled in one count. While duplicity was a ground for special demurrer at common law, under our code it is to be taken advantage of by motion to strike out. [See section 1816, Revised Statutes 1909.] Such motion has not the character of a general demurrer, and we think that it cannot be said to be "dispositive of the whole case on a matter of law" within the meaning of the authorities, supra. It is true that it is levelled at the entire petition, but it is not every motion to strike out an entire pleading that rises to the dignity of a demurrer or is to be treated as such. [See Bick v. Dry, 134 Mo. App. 589, 114 S. W. 1145; Bingaman v. Hannah, 270 Mo. 611, 1. c. 627, 194 S. W. 276; Ewing v. Vernon Co., 216 Mo. 681, 1. c. 686, 116 S. W. 518.] In the case last cited (1. c. 686) it is said: "A motion to strike out might be leveled at a frivolous pleading, or a second petition that was a departure from the first, or a sham pleading. So, it might be leveled at trifling, trivial, nugatory, redundant or irrelevant matter or matter of duplicity or unnecessary repetition or the like; but it ought not to fill the well-defined and technical office of a demurrer in bringing to the attention of the court

Stauffer v. Stauffer.

demurrable defects in a petition. (Italics ours). While some of the language used in a prior paragraph of that opinion was, in effect, disapproved in the Shohoney case, 1. c. 150, as being too broad in its scope, that which we have quoted was not criticized; and it appears to be entirely sound doctrine to hold that motions of the character there mentioned, including a motion to strike out a pleading on the ground of duplicity, ought not to be put in the same category as demurrers. To hold otherwise in the instant case would be to undertake to carve out a new exception to the general rule as to the right to have a motion reviewed on appeal, contrary to the trend of judicial decision on the subject. [Shohoney v. Railroad, supra, 1. c. 152.] And, for the reasons noted, we think that we would not, in any event, be justified in putting in the excepted class a motion which strikes at a pleading for matter of duplicity.

We consequently hold that the ruling upon the motion to strike out is not here for review.

Upon the record before us we perceive no ground upon which we may rightfully disturb the judgment below, and it must therefore be affirmed. It is so ordered.

Reynolds, P. J., and Becker, J., concur.

JOHN B. STAUFFER, Respondent, v. FRANCES A. STAUFFER, Appellant.

St. Louis Court of Appeals. Argued and Submitted November 8, 1918. Opinion Filed December 3, 1918.

1. DIVORCE: Judgment Dismissing Petition: Power of Court to Modify: Nonsuit. In view of the provisions of section 1980, Revised Statutes 1909, the action of the trial court in modifying its order and judgment in a divorce case, dismissing plaintiff's petition, by entering in it that plaintiff's petition was dismissed "without prejudice," was error; and this whether with or without a motion to so do.

Stauffer v. Stauffer.

2.

:

Such change in the judgment or

decree in the case was tantamount to allowing a nonsuit after submission and was beyond the power of the court.

Appeal from the Circuit Court of the City of St. Louis. -Hon. Thos. C. Hennings, Judge.

REVERSED AND REMANDED (with directions.)

George F. Beck for appellant.

(1) The plaintiff shall be allowed to dismiss his suit or take a nonsuit at any time before the same is finally submitted to the jury, or to the court sitting as a jury, or to the court, and not afterwards. R. S. 1909, sec. 1980; Reed v. Reed, 39 Mo. App. 473; Savoni v. Brashear, 46 Mo. 345; Lawyers' Co-Op. Pub. Co. v. Gordon, 173 Mo. 139. (2) An action for divorce in Missouri is purely statutory, and there is no statute authorizing a dismissal by plaintiff after a final judgment. In re Kinsolving, 135 Mo. App. 640; Sharpe v. Sharpe, 134 Mo. App. 278; State v. Grimm, 239 Mo. 340. (3) The finding and judgment of the court are inconsistent. The court having found "that the plaintiff is not an innocent and injured party and is not entitled to the relief prayed for in his amended petition," it was error and improper for the court to modify the decree permitting a dismissal "without prejudice." (4) Appellant is aggrieved by the action of the circuit court. If the judgment as modified is erroneous, appellant's remedy is by appeal to have the judgment reviewed. It is not subject to a successful attack collaterally upon a mere showing that the words "without prejudice" should have been omitted. Long v. Long, 141 Mo. 352, 370, point 6.

James M. Rollins and Rudolph Schneider for respondent.

(1) There was no non-suit taken in this case, and what was done was not in the nature of a non-suit. The cases cited refer to an attempt to take a non-suit

Stauffer v. Stauffer.

after trial, after the whole case had been finally submitted. The Reed case is not similar to the case here, where a motion for a new trial was filed; a multitude of affidavits were filed, disclosing newly discovered evidence, before a final finding dismissing plaintiff's petition without prejudice, was entered. The cases

are not on the same footing. The appellant was therefore not aggrieved by the finding of the lower court. There were no judgments against her and she was not aggrieved and therefore had no right to appeal. Only parties aggrieved have the right of appeal. R. S. 1909, sec. 2038. (2) A judgment is not a finality until all motions are disposed of. "A motion for a new trial or a motion to set aside a judgment goes over to the next term of court without any special order of continuance. The court has the power at said next term to take up and consider the same." Harkness v. Jarvis, 182 Mo. 231. "A motion to modify may be determined at a subsequent term of court." Brieding v. Nelson, 142 Mo. App. 685. "Until the motion is disposed of, a judgment is not a finality." Childs v. Railway, 117 Mo. 414; Memphis v. Brown, 94 U. S. 715; Amy v. Watertown, 130 U. S. 301; Baker v. Baker, 51 Wis. 538; Windlett v. Hamilton, 52 Ill. 180. "The trial court may, in the exercise of a sound discretion, set aside a verdict on its own motion. Schuate v. Transfer Co.. 108 Mo. App. 25; Parker v. Britton, 133 Mo. App. 270; Hurle v. Kennally, 186 Mo. 225. The jurisdiction of the court being held until all motions pending therein were finally disposed of. Deck v. Wright, 135 Mo. App. 536; State v. French, 118 Mo. App. 15; Cramer v. Barmon, 193 Mo. 327. (3) It is in the discretion of a court of equity who has all the facts before him, including motion for a new trial on the ground of newly discovered evidence, to modify his orders and dismiss plaintiff's petition without prejudice. "And such dismissal is no decision of the controversy on its merits." Newberry v. Ruffin, 102 Va. 73. (4) "It is the constant practice of the court to insert in the decree of dismissal of such a bill that it shall be without prejudice." Daniells Pleading