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Rubey v. Shain

Web. M. Rubey v. Ed. C. Shain

Rubey v. Shain, 51 Mo. 116 (1872)
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Court
Supreme Court of Missouri · State Highest Courts
Decided
October 15, 1872
Judges
Adams, Bliss, Wagner
Citations
51 Mo. 116
Headnotes
1. Judgment on demurrer. * What will not support an appeal. — A record entry that the “demurrer was by the court overruled ; to which ruling the defendant at the time excepted; and defendant filing no further pleadings, judgment is rendered for plaintiff,” is no such judgment as will support an appeal.
Summary
Appeal from Macon Court of Common Pleas.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Wagner

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Wagner, Judge,

delivered the opinion of the court.

This was an action of trespass, and the defendant interposed a demurrer to the petition, which was overruled by the court.

There is no final judgment or assessment of damages in the case. The only record entry is, that the “demurrer was by the court overruled, to which ruling the defendant at the time excepted, and defendants filing no further pleadings, judgment is rendered for plaintiff.” This is not such a judgment as will support an appeal.

We have looked into the petition, and from the allegations therein made, it is obvious that the defendants should have answered to the merits, instead of demurring. The appeal will be dismissed, but the court below should permit the defendants to file an answer if they see proper to do so. Appeal dismissed.

Judge Adams concurs. Judge Bliss absent.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

1882–1883: 11938–1939: 118822026peak 1882 · 1

Relies on it most ⓘ

  1. Town of Warrensburg ex rel. Colbern v. Miller77 Mo. 56 (1882)
  2. McCoy v. Simpson125 S.W.2d 833 (Mo. 1939)

Most recent

  1. McCoy v. Simpson125 S.W.2d 833 (Mo. 1939)
  2. Town of Warrensburg ex rel. Colbern v. Miller77 Mo. 56 (1882)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

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