Long v. Towl

1. Practice — Appeal—Motion for New Trial or in Arrest. — Before the party injured by the judgment can take his appeal or writ of error, he must give the inferior court the opportunity of correcting its own error, by filing a motion for a new trial or in arrest, or to set aside the judgment a3 entered —G. S. 1865, ch. 172, § 6. 2. Practice — Pleading—inswer*—Demurrer.—A party cannot demur and answer to the same subject matter.

Error to Second District Court. I. The amended answer was insufficient because it traverses the same cause of action it confesses and avoids— Darrett v. Donnelly, 38 Mo. 492. Because the breaches being specifically assigned, the denials must be specific and nil debet, no answer — Engler v. Bates, 19 Mo. 545. Motion to strike out, not demurrer, was the proper proceeding — Phillips v. Evans, 38 Mo. 309. II. The petition shows a cause of action, and the answer being no plea in bar, the court could not dismiss the suit; for the court in a demurrer does not look to the exhibits, and defendant claims that a motion to strike out answer is a demurrer — Curry v. Lackey, 35 Mo. 392 ; Baker v. Berry, 37 Mo. 306 ; Calvert v. Han. & St. Jo. R.R. Co., 38 Mo. 465. I. There has been no final judgment rendered in this case. The order of the Circuit Court “ dismissing plaintiffs’ cause of action ” is not a final judgment either in form or fact. That it i§ not in form, see Lisle v. Rhea, 9 Mo. 172; Jones v. Hopper, 9 Mo. 173 ; Young v. Stonebreaker, 33 Mo. 117 ; Adams v. Trigg, 35 Mo. 190 ; State v. Gregory, 38 Mo. 501; G. S. 690, § 30. That it is not, in fact, is scarcely a debatable question. Should the plaintiff file a new petition, and commence a new action on the same contract, a plea of former judgment in bar could not be sustained — Taylor v. Larkin, 12 Mo. 103. The final entry of judgment having been made or returned in this case, the writ of error and appeal should be dismissed. II. There having been no motion made by the plaintiff for leave to amend his petition, for a rehearing, or for a new trial, this court will not consider errors alleged to have been committed in the court below unless an opportunity shall first have been given to the lower court to correct them by motion for new trial — Woods et al. v. Mosier et al., 22 Mo. 335; State v. Marshall, 36 Mo. 400; Banks v. Lades, 39 Mo. 406. III. The order of the Circuit Court dismissing the plaintiff’s petition on the motion filed by them to strike out defendant’s amended answer was clearly right. The plaintiff’s objection to defendant’s answer was in the nature of a demurrer ; and the court, in order to decide the motion, was compelled to look into the insufficiency of the petition, as an, issue of law was presented by the answer sought to be stricken out. — 1 Tiff. & Smith’s Prac. 387-8 & 579 ; 12 Barb.. (S. C.) 573 ; 5 Sandf. 54 ; 8 How. Prac. 79.