Strauss v. St. Louis Transit Co.

REYBURN, J. (after stating the facts as above).— No bill of exceptions was filed in this ease which is before this court upon the naked record, and restricting consideration or review to questions arising on the .face of the record; if material error appear patent on the face of the record, the judgment should be reversed, even in absence of a motion for new trial or in arrest, but not otherwise. Appellant’s counsel has argued at length the propositions comprehended in the demurrer to the petition, but the first ground of objection only can be considered in the condition in which this controversy has arrived in this court. By pleading to the merits and filing an answer, the defendant’s attitude is not unlike its position would be if it had withdrawn its demurrer; the demurrer admitting the allegations of the petition, and the answer to the merits denying them, are illogical, contradictory of and opposed to each other and can not stand together.' If the appellant relied upon the infirmities in the petition arrayed in its demurrer, it was compelled to stand upon its demurrer, and not to proceed to a trial of the issues of fact, and it can not be permitted to speculate by trial of those issues, and now return to and restore its demurrer, but must be held to have waived and abandoned it. Pickering v. Telegraph Co., 47 Mo. 457; Scoville v. Glasner, 79 Mo. 449; Estes v. Shoe Co., 155 Mo. 577. The rule is firmly settled in this State that when a defendant pleads to the merits, he thereby waives all objections to mere formal defects, and everything in the petition, excepting first, that the petition fails to state facts sufficient to constitute a cause of action; and secondly, the objection to the jurisdiction of the court over the subject-matter of the action. R. S. 1899, sec. 602; Seckinger v. Mfg. Co., 129 Mo. 590; Paddock v. Somes, 102 649 Mo. 226; Childs v. Railroad, 117 Mo. 414. Considered most favorably for defendant, the petition states a cause of action and any defects therein are cured by the verdict. R. S. 1899, sec. 629. In this situation the judgment must be affirmed. Bland, P. J., and Goode, J., concur.