Sebastian County Coal & Mining Co. v. Fidelity Fuel Co.

*612 RAGLAND, J. In 1916, the Sebastian County Coal & Mining Company sued the Fidelity Fuel Company and two other defendants in the Circuit Court of Jackson County, to recover certain past due installments of the rent reserved under a mining lease. To the plaintiff’s petition in that case the defendant, Fidelity Fuel Company, filed an answer and a cross-petition. In the cross-petition it alleged that it had on the demised premises certain mining tools and equipments of the value of $30,000, “which the plaintiff [had] wrongfully and unlawfully seized and converted to its own use, to the damage of the defendant in the sum of $30,000.” Plaintiff filed a motion to strike out the cross-petition, based on a number of grounds —among others, that it did not state facts sufficient to' constitute a cause of action .against plaintiff. The motion to strike out was sustained, and defendant, without asking leave to file an amended pleading, excepted to the court’s ruling, and thereafter preserved its exception by a term bill. Subsequently the cause went to trial on the petition and answer, and resulted in a judgment against the defendant, Fidelity Fuel Company, in which no reference was made to its cross-action. From’ such judgment it prosecuted an appeal to this court, and on that appeal secured a review of the circuit court’s ruling, striking out its cross-petition. In fact, the correctness of that ruling presented the principal, if not the only, question for determination on the appeal. Upon full hearing and consideration the ruling of the circuit court was approved and its judgment affirmed. [Coal & Mining Company v. Fuel Company, 310 Mo. 158.] Subsequently the defendant paid the judgment and caused it to be satisfied of record. Thereafter, on March 6, 1926, it applied to the circuit court for leave to file in the same cause an amended cross-petition. Plaintiff, appeared specially and objected to the court’s attempting to exercise further jurisdiction in the cause. The objection was sustained, and the leave applied for denied. From the court’s order denying the leave so applied for the defendant again appealed. And that is the proceeding now here. *613 Appellant’s position is briefly this: The motion to strike out was in substance a general demurrer to the defendant’s cross-petition; no final judgment on the demurrer, disposing of the cause of action against the plaintiff attempted to be pleaded therein, was ever entered; consequently, that action is still pending, and defendant has as of course a right to file an amended pleading therein. It is true that motions to strike out pleadings of the character of the one in question here have been held to be in fact demurrers, and consequently that they should be judged of by the rules pertaining to demurrers. Stated differently, 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 demurrers may be applied to such motion. However, the doctrine has been invoked and applied, for the most part, in determining the question of whether the trial court’s ruling on such a motion is open to appellate review as a part of the record proper, or whether an exception thereto must be saved and the court’s attention again called to it in a motion for a new trial. [Shohoney v. Railroad, 231 Mo. 131, and eases there cited and reviewed.] In the ease now sought to be re-opened by appellant no such question was raised. When the court’s order striking out the cross-petition was entered, defendant did not ask' leave to file an amended pleading, but treated the court’s action as final, duly excepted thereto, preserved its exception, and thereafter sought and secured an appellate review of the ruling. It will thus be seen that, while the motion served all the purposes of a demurrer, the order sustaining it and striking out the cross-petition likewise served all the purposes of a formal judgment on demurrer. The order was in effect a final disposition of defendant’s case on a matter of law, and the parties so considered and treated it. [See Austin v. Loring, 63 Mo. 19, 21; and also Johnson v. Railroad, 227 Mo. 423, 434.] Respondent has moved to dismiss the appeal, on the ground that there is no provision of the statute authorizing it. The court’s order refusing defendant the leave requested may, we think, be treated as a final judgment in this proceeding, within the purview of the statute. The order and judgment of the circuit court are affirmed. All concur.