Leimer v. Pacific Railroad

Scott, Judge, delivered the opinion of the court. As the court below sustained the demurrer to part only of the plaintiff’s petition, the only course left to him, in order to take the opinion of this court on the correctness of the action of the circuit court, was to submit to a nonsuit and bring the case here. If the nonsuit had not been taken, there would have been still an action pending in the court below, which would have restrained this court from entertaining an appeal or writ of error, as the plaintiff could not have appealed a part of his cause whilst another part was undetermined. Had the plaintiff gone on with so much of his action as was not affected by the demurrer, he might have been embarrassed in his subsequent proceedings. Suppose he had recovered on the cause of action remaining unaffected by the demurrer, would he bring a writ of error on the judgment in order to have the judgment of the court reversed for sustaining the demurrer to part of his petition ? If this was allowed him, would he not lose the judgment he had obtained ? A judgment is an entire thing, and must be reversed in whole and not in part. There was but one count or cause of ac [28] tion in the petition. The law required him to join all his accounts growing out of one transaction in the same petition. He could not sue for one part of an account and after judgment bring a suit for another part of it. (Brown v. King & Fisher, 10 Mo. 56.) Had the case been as it was in the brief supposed to be — a demurrer sustained to the entire petition— as the judgment on the demurrer was final, there being no leave to amend asked or given, the party by that judgment was out of court and the subsequent nonsuit was an act of supererogation and did not affect the proceedings on the demurrer. The record being brought here by appeal or writ of error, the nonsuit would be disregarded as a superfluous act, and the action on the demurrer would have alone been considered. We see no objection to the petition under the liberal system of the pleadings now indulged. The petition with the accounts annexed sufficiently show the object and intent of the plaintiff’s action. Judge Napton concurring, the judgment will be reversed and the cause remanded; Judge Richardson not sitting.