403; Knisley v. Leathe, 256 Mo. 341, 166 S. W. 257; State ex rel. v. Ellison, 266 Mo. 423, 181 S. W. 998. A demurrer and the court's action thereupon are, of course, matters of record proper, and as such are preserved for review in an appellate court; and if it can be said that this motion to strike out the petition, on the ground of duplicity, fills the office of a demurrer, then the ruling thereon is subject to review here as a matter arising on the face of the record proper.

In Shohoney v. Railroad, supra, 231 Mo. loc. cit. 148, 132 S. W. 1064, Ann. Cas. 1912A, 1143, it is said:

breach of the condition of the bond sued up- Burrows v. McManus, 249 Mo. 555, 155 S. W. on. The petition, after pleading the execution of the bond sued upon and setting out in substance the condition thereof, avers that defendant Owens "did not in every respect discharge and perform his duties as constable according to law," in respect to the matters subsequently stated. It is averred that plaintiff obtained a judgment against one Kranzberg and one Cohen before a justice of the peace in and for the said district, which judgment was afterwards revived and an execution issued thereon, which was received by the defendant constable; that said defendant failed and refused to serve a certain writ of garnishment on the execution, refused to sell certain perish"It was early held that matter in a pleading able property levied upon by virtue of said stating no cause of action or defense was open execution, though ordered to do so by the to a motion to strike out as well as to a demurjustice of the peace, failed and refused to rer. Sapington v. Jeffries, 15 Mo. loc. cit. 631; levy on a certain motor truck owned by said Niedelet v. Wales, 16 Mo. loc. cit. 215; Bar Cohen, and thereafter wrongfully and un- ley_v. Cannon, 17 Mo. loc. cit. 597; Robinson lawfully released all of the goods, wares, and V. Lawson, 26 Mo. loc. cit. 71; Ming v. Sug merchandise and other personal effects of gett, 34 Mo. loc. cit. 365 [86 Am. Dec. 112]; Howell v. Stewart, 54 Mo. loc. cit. 407. Now, said Cohen levied upon under the execution, the rule is that a demurrer not waived by pleadwhich was the only property of Cohen subject ing over, when stood on, preserves itself withto execution; that the judgment, amounting, out the aid of a bill of exceptions or motion with interest and costs, to $275.40, remains for a new trial. State ex rel. v. Jones, 155 Mo. wholly unsatisfied; that said Cohen, at the 570 [56 S. W. 307]; Hannah, v. Hannah, 109 times mentioned, was possessed of goods, Mo. loc. cit. 240 [19 S. W. 87]; Houtz v. wares, and merchandise, money and credits Hellman, 228 Mo. 655 [128 S. W. 1001], and cases therein cited. From the proposition that and outstanding accounts sufficient to satisfy a motion to strike out may, in some instances, the judgment; and that "by reason of the fail-fill the office of a demurrer, the doctrine has ure and refusal of said constable to dis- been deduced that a motion which fills such charge his duties according to law" the plain- office should be judged of by the rules pertaintiff "has lost his debt and has been unable to ing to demurrers, i. e., when a motion is to all collect the same or any part thereof." intents and purposes a demurrer dispositive of the whole case on a matter of law, the rules relating to a demurrer may be applied to such motions. Austin v. Loring, 63 Mo. loc. cit. 21; O'Connor v. Koch, 56 Mo. 258."

Whether this petition is in every respect in proper form, and whether every act of the defendant constable complained of is such as to constitute a breach of the condition of his bond, we are not called upon to decide. Obviously there are sufficient facts averred to render the petition good as stating a cause of action for dereliction of official duty on the part of the defendant constable, such as to constitute a breach or breaches of the bond sued upon.

After a review of the prior cases dealing with the application of the rule of practice here under consideration, the court, in the Shohoney Case, 231 Mo. loc. cit. 152, 132 S. W. 1065, Ann. Cas. 1912A, 1143, further said:

"All will agree that the general rule in Missouri, subject to exceptions, is that motions must be preserved in a bill of exceptions and called to the court's attention by a motion for a new trial, else an assignment of error, based on a ruling on the motion, is lost for appellate purposes; and that the trend of the judicial

[5] Appellants further insist that the court erred in overruling their motion to strike out the petition, and that this motion is before us for the reason that it fulfills the office of a demurrer. Though the motion is preserved in a bill of exceptions filed, ap-mind is to refuse to carve out new exceptions pellants are here without a motion for a new trial and without an exception saved to the overruling of the motion to strike out. Consequently the ruling upon the latter motion is not here for review unless it be by reason of the rule upon which appellants rely. It is true that a motion sometimes fills the office of a demurrer, and consequently the action of the trial court thereupon is reviewed and adjudged by the rule pertaining to demurrers. See Shohoney v. Railroad, 231 Mo. 131, 132 S. W. 1059, Ann. Cas. 1912A, 1143;

to the general rule. To that end it has been ruled that a motion for judgment on the pleadin the motion for a new trial and by a bill ings is not preserved except by a ground lodged (Sternberg v. Levy, supra [159 Mo. 617, 60 S. W. 1114, 53 L. R. A. 438]; Godfrey v. Godfrey, 228 Mo. 507 [128 S. W. 970]; Bank v. Klein, 33 Mo. 559); that a motion to quash the proceedings is in the same category (Tarthat a motion to strike out an amended petikio v. Clark, 186 Mo. 285 [85 S. W. 329]); tion because of a departure stands on the same foot (Bick v. Dry, 134 Mo. App. 589 [114 S. W. 1145]); that a motion to quash an indict

ment stands on the same foot (State v. Fraker, | Cas. 1912A, 1143. And, for the reasons not137 Mo. 258 [38 S. W. 909]); so to review ed, we think that we would not, in any event, a judgment (Daggs v. Smith, 193 Mo. 494 [91 be justified in putting in the excepted class a S. W. 1043]), and motions to set aside a non-motion which strikes at a pleading for matsuit, to quash executions, to dismiss, are treatter of duplicity. ed similarly."

In the Shohoney Case the motion was directed to but a part of a replication, while that before us seeks to have the entire petition stricken out, but the law touching the matter, as there expounded and declared, is, we think, against the contention of appellants herein.

[6-8] This motion is not essentially a demurrer. It does not challenge the sufficiency of the petition as stating a cause of action. On the contrary, it impliedly concedes that the petition states two or more causes of action commingled in one count. While duplicity was a ground for special demurrer at common law, under our Code it is to be taken advantage of by motion to strike out. See section 1816, Rev. Stat. 1909. Such motion has not the character of a general demurrer, and we think that it cannot be said to be "dispositive of the whole case on a matter of law" within the meaning of the authorities, supra. It is true that it is leveled at the entire petition, but it is not every motion to strike out an entire pleading that rises to the dignity of a demurrer or is to be treated as such. See Bick v. Dry, 134 Mo. App. 589, 114 S. W. 1145; Bingaman v. Hannah, 270 Mo. 611, loc. cit. 627, 194 S. W. 276; Ewing v. Vernon Co., 216 Mo. 681, loc. oit. 686, 116 S. W. 518, 519. In the case last cited it is said:

We consequently hold that the ruling upon the motion to strike out is not here for review.

Upon the record before us we perceive no ground upon which we may rightfully disturb the judgment below, and it must therefore be affirmed. It is so ordered.

Appeal from St. Louis Circuit Court; Wil

"Not to be officially published."

"A motion to strike out might be leveled at a frivolous pleading, or a second petition that was a departure from the first, or a sham plead-son A. Taylor, Judge. ing. So, it might be leveled at trifling, trivial, nugatory, redundant, or irrelevant matter, or matter of duplicity, or unnecessary repetition, or the like; but it ought not to fill the well- and another, doing business as the Yuede & defined and technical office of a demurrer in Probst Commission Company, against Mibringing to the attention of the court demur-chael J. Funck. On appeal to circuit court, rable defects in a petition." (Italics ours.)

While some of the language used in a prior paragraph of that opinion was, in effect, disapproved in the Shohoney Case, 231 Mo. loc. cit. 150, 132 S. W. 1059, Ann. Cas. 1912A, 1143, as being too broad in its scope, that which we have quoted was not criticized; and it appears to be entirely sound doctrine to hold that motions of the character there mentioned, including a motion to strike out a pleading on the ground of duplicity, ought not to be put in the same category as demurrers. To hold otherwise in the instant case would be to undertake to carve out a new exception to the general rule as to the right to have a motion reviewed on appeal, contrary to the trend of judicial decision on the subject. Shohoney v. Railroad, supra, 231 Mo. loc. cit. 152, 132 S. W. 1059, Ann.

Action in justice court by George Yuede

Af

it dismissed the appeal on the motion of de-
fendant, whereupon plaintiffs appeal.
firmed.

Theodore C. Eggers and Harmon J. Bliss,
both of St. Louis, for appellants.
W. H. Killoren and Alexander R. Russell,
both of St. Louis, for respondent.

BECKER, J. This action originated before a justice of the peace and was taken by appeal to the circuit court, where the court dismissed the appeal on motion of the defendant, on the ground that the plaintiffs had failed to state a cause of action against the defendant as is required by section 7413, Revised Statutes of Missouri, 1909; whereupon plaintiffs bring this appeal.

[1] Defendant below, respondent here, raises the point that there is no bill of exceptions

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Appeal from St. Louis Circuit Court; William T. Jones, Judge.

shown to have been filed by the appellants, | cannot be considered by the jury in determining and that which has been filed under the title compensation for injuries sustained by defendof "Abstract of the Record" is totally insuf- ant's negligence. ficient, in that no bill of exceptions nor an abstract thereof appear anywhere therein. We have examined the abstract of the record and find that it does contain a statement that a bill of exceptions was signed and filed, yet there is not a single word showing what the bill of exceptions contained. The result is that the case is before us without any exceptions.

[2] While appellants urge that during the course of the trial the court made certain rulings, which it is urged were erroneous, yet, the abstract failing to contain the bill of exceptions or an abstract thereof, we cannot judicially know what these rulings of the court were and what exceptions, if any,

were saved thereto.

It therefore follows that there is nothing before us in this proceeding for review except the record proper, and, finding no reversible error therein, the judgment of the trial court should be affirmed, and it is so ordered. Mississippi Valley Fuel Co. v. Bean, 152 Mo. App. 704, loc. cit. 705, 133 S. W. 112; Harding v. Bedell, 202 Mo. loc. cit. 630, 100 S. W. 638; Heltzell v. McDowell, 135 Mo. App. 204, 115 S. W. 1056; Thompson v. Ruddick, 213 Mo. 561, 111 S. W. 1131; Clay v. Union Publishing Co., 200 Mo. 665, 98 S. W. 575; Stark . Zehnder, 204 Mo. 442, 102 S. W. 992; Stark Bros. v. Martin, 126 Mo. App. 575, 105

S. W. 33.

Action by George Bock, by his next friend, Michael Bock, against Herman Rinderknecht. Verdict was rendered for plaintiff for $1, and, from the denial of a motion for new trial, plaintiff appeals. Reversed and remanded, with directions.

William Hilkerbaumer, of St. Louis, for appellant.

Muench, Walther & Muench, of St. Louis, for respondent.

BECKER, J. This is an action by a minor, by his next friend, for personal injuries sustained and predicated on defendant's alleged negligence. The petition alleges the damages at $7,500. The case was tried to a jury, and a verdict resulted in favor of plaintiff for the sum of $1. Plaintiff thereupon filed a motion for new trial, challenging the verdict on the ground, among others, that the verdict was grossly inadequate and against the evidence and the weight of the evidence, contrary to the instruction of the court, and so grossly inadequate and contrary to the evidence and the weight of the evidence as to indicate bias, passion, or prejudice on the part of the jury, and because plaintiff was entitled to substantial damages. Upon this motion being overruled, plaintiff in due course brings this appeal, as

REYNOLDS, P. J., and ALLEN, J., concur. signing said ruling as error.

BOCK V. RINDERKNECHT.

(No. 15226.) (St. Louis Court of Appeals. Missouri. Dec. 3, 1918.)

1. NEGLIGENCE TIONS OF FACT.

Where an eight year old boy standing on . sidewalk was injured by the fall of a nearby gate pulled off its hinges by the hub of defendant's wagon, the question as to defendant's negligence was for the jury. 2. DAMAGES 132(6)-INADEQUATE DAMAGES-PERSONAL INJURIES.

The record before us discloses that the sufficiency of plaintiff's evidence to make a case for the jury was not challenged, nor was any peremptory instruction requested on the part of the defendant at the close of the entire case.

The defendant owned and conducted a 136(20)—EVIDENCE-QUES- grocery store, located on the southwest corner of Carrie and Prescott avenues, in the city of St. Louis. These premises faced on Carrie avenue, and the lot ran south along the line of Prescott avenue to an alley. The store building was located on the front or north end of the lot and extended back along Prescott avenue 48 feet. There was also a 20-foot shed at the rear of the lot which abutted the sidewalk and the alley. That part of the lot between the store building and the shed was fenced in as a wagon yard. A fence was built along the sidewalk on the west side of Prescott avenue from the end of the store building to the shed, and there was a wagon gate 10 feet wide in this fence. The wagon gate was maintain

A verdict for $1 was so grossly inadequate as to indicate prejudicial passion or bias, where an eight year old boy struck by a falling gate sustained an oblique fracture of the upper thigh bone, the lower pelvic bone, the thigh joint, and the hip bone, requiring the wiring of the bones, causing great suffering and necessitating confinement to the hospital for eight weeks, leaving plaintiff with a shortened leg.

3. DAMAGES 182-REDUCTION OF Lossed and operated by the defendant and used PAYMENTS BY DEFENDANT.

The fact that defendant in a personal injury suit has paid plaintiff's hospital and doctor bills

by himself and his employés in driving in and out of the wagon yard. On April 2, 1914, the plaintiff, then eight years of age,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

was injured by the falling of the wagon | did, pushing the gate toward the alley, "the gate upon him as he was walking along the sidewalk on Prescott avenue.

On cross-examination, Dr. Cawood testified as to the shortening of the limb, that it Willie Bock, plaintiff's brother, testified for would not show in the boy when he was runthe plaintiff that-

It would be compensated for by nature, and, case from the jury, nor was any peremptory that when the boy would reach manhood no instruction asked at the close of the entire one would be able to tell that he had ever case. had the fracture.