Opinion
October 25, 1941.
1. LIMITATIONS OF ACTIONS: Process: Delays in Issuing Writs as Bar. In a suit for libel, where a two-year statute of limitation applied, the plaintiff failed to obtain service and permitted one period of more than two years and another of five years to elapse without the issuance of either an alias summons or a writ of attachment. There is no conflict in the Court of Appeals' opinion holding that the action was barred by limitation, though the suit was filed within the two-year period.
2. PLEADING: Demurrer: Allegation of Facts on Face of Record. The opinion of the Court of Appeals was not in conflict in holding, in effect, that on demurrer to the petition the records in the same case must be considered as if alleged in the petition.
3. LIMITATIONS OF ACTIONS: Bar on Face of Petition: Demurrer. There was no conflict in the holding of the Court of Appeals that a demurrer on the ground of the bar of limitation is good where the petition shows the bar on its face, and if the action is such that the bar may be obviated by some exception in the statute, such exception should be pleaded in the petition.
WRIT QUASHED.
Gus O. Nations for relator.
(1) Respondents have erroneously ruled that a demurrer to a petition is to be adjudged, not alone from the face of the petition, but from facts extraneous to the petition, and not mentioned therein, and thus respondents have refused to follow the controlling decisions of this court, wherein it is held: "Whatever may be the doctrine elsewhere, in this state a demurrer strikes squarely at the face of a petition, and nowhere else." Thus respondents have refused to follow this court's ruling in: Colley v. Jasper County, 337 Mo. 570, 85 S.W.2d 58; Hubbard v. Slavens, 218 Mo. 622, 117 S.W. 1104; Clark v. Grand Lodge of Brotherhood of R.R.T., 328 Mo. 1090, 43 S.W.2d 404; State ex rel. Gentry v. Monarch Transfer Storage Co., 323 Mo. 575, 20 S.W.2d 62; Bennett v. Lohman, 292 Mo. 493, 238 S.W. 792; Pacific Lime Gypsum Co. v. Mo. Bridge Iron Co., 286 Mo. 117, 226 S.W. 853. (2) Respondents have erroneously ruled that a "speaking demurrer" to a petition is permissible under the Missouri practice and that such demurrer may be sustained and a case dismissed as a result thereof. In this the respondents have refused to follow the controlling decisions of this court, wherein it is said: "Whatever may be the doctrine elsewhere, there is no such thing as a `speaking demurrer' known to the jurisprudence of this state; that is, a demurrer that alleges affirmative matter, which, taken with the allegations in the petition, shows that no cause of action is stated. Whatever may be the doctrine elsewhere, in this state a demurrer strikes squarely at the face of the petition, and nowhere else. . . . This has been held early and late." Thus respondents have refused to follow the controlling decisions of this court in Hubbard v. Slavens, 218 Mo. 622, 117 S.W. 1104; Pacific Lime Gypsum Co. v. Mo. Bridge Iron Co., 286 Mo. 117, 226 S.W. 853; State ex rel. Gentry v. Monarch Transfer Storage Co., 323 Mo. 575, 20 S.W.2d 62; Colley v. Jasper County, 337 Mo. 507, 85 S.W.2d 58. (3) Respondents have erroneously ruled that a demurrer to a petition raises questions of fact not mentioned in the petition and may be adjudged on evidence found outside the petition. In this respondents have failed and refused to follow the controlling decisions of this court, wherein it is said: "The purpose of a demurrer is not to raise an issue of fact, nor does it prove an allegation of same," in the following cases: State ex rel. Gentry v. Monarch Transfer Co., 323 Mo. 575, 20 S.W.2d 62; Pacific Lime Gypsum Co. v. Mo. Bridge Iron Co., 286 Mo. 117, 226 S.W. 853; Bennett v. Lohman, 292 Mo. 493, 238 S.W. 792; Hubbard v. Slavens, 218 Mo. 622, 117 S.W. 1104. (4) Respondents in their opinion have quoted from the language of the Supreme Court en banc in State ex rel. Gentry v. Monarch Transfer Storage Company, 323 Mo. 575 et seq., 20 S.W.2d 60, the following statement of the rule by which this case should have been adjudged: "The plea of the Statute of Limitations as a ground of demurrer can only be made when the statute creates an absolute bar for lapse of time without any exception (if the necessary facts therefor appear in the petition)." And, having thus quoted, in the language of this court, the rule announced by this court, respondents add, "This is not the law!" Thus, respondents have refused to follow the controlling decision of this court in State ex rel. Gentry v. Monarch Transfer Storage Co., 323 Mo. 562, and have expressly asserted the rule announced by the Supreme Court "is not the law." (5) Respondents have erroneously ruled that failure to issue alias or pluries process for a not-found defendant at each succeeding term of court works a discontinuance of the cause. Thus, respondents have failed to follow the decision of this court in Ferber v. Brueckl, 322 Mo. 892, 17 S.W.2d 524.
Fordyce, White, Mayne, Williams Hartman and G. Carroll Stribling for respondents; Evans, Mershon Sawyer of counsel.
(1) Respondents' decision that in ruling on defendant's demurrer the trial court could properly take judicial notice of the record proper in the same case, is not in conflict with any decision of this court. Opinion, St. Louis Court of Appeals, Relator's Abs., pp. 7-25, incl., 148 S.W.2d 109; State ex rel. Loving v. Trimble, 53 S.W.2d 1033, 331 Mo. 446; Barth v. K.C. Elevated Ry. Co., 142 Mo. 535; State ex rel. v. Held, 62 Mo. 559; Dennig v. Meckfessel, 303 Mo. 525, 261 S.W. 55; Ludwig v. Scott, 65 S.W.2d 1034; Herweck v. Rhodes, 34 S.W.2d 32, 327 Mo. 29. (a) The opinions cited by relator under his point (1) involve only the consideration of exhibits attached to petitions or other evidentiary matters outside of the record proper in the same case. Colley v. Jasper County, 337 Mo. 507, 85 S.W.2d 58; Hubbard v. Slavens, 218 Mo. 598; Clark v. Grand Lodge of Brotherhood of Railway Trainmen, 328 Mo. 1090, 43 S.W.2d 404; State ex rel. Gentry v. Monarch Transfer Storage Co., 20 S.W.2d 60; Bennett v. Lohman, 292 Mo. 493, 238 S.W. 792; Pacific Lime Gypsum Co. v. Mo. Bridge Iron Co., 286 Mo. 112. (2) The decision of respondents is in no way in conflict with the opinions of this court on the question of "speaking demurrers." State ex rel. Gentry v. Monarch Transfer Storage Co., 20 S.W.2d 60, 323 Mo. 575; Pacific Lime Gypsum Co. v. Mo. Bridge Iron Co., 286 Mo. 116, 226 S.W. 853. (3) Respondents' opinion did not hold that issues of fact may be raised by demurrer to a petition. Respondents' opinion actually held that defendant's demurrer was properly sustained upon issues of law arising upon the face of plaintiff's petition and the record proper in the same case. See opinion of respondents, Relator's Abs., pp. 19-25, 148 S.W.2d 109. (4) Respondents' opinion held that in order to avail himself of any exception to the general limitation statute applicable to actions for libel and slander, plaintiff was required to affirmatively plead facts bringing his case within such exception. Respondents' opinion upon this point is not in conflict with the decision of this court in State ex rel. Gentry v. Monarch Transfer Storage Co., 323 Mo. 562, 20 S.W.2d 60, which decision states the rule only in quo warranto proceedings but is in harmony with and directly follows the applicable decisions of this court. Ludwig v. Scott, 65 S.W.2d 1034; Herweck v. Rhodes, 34 S.W.2d 32, 327 Mo. 29; Burrus v. Cook, 215 Mo. 496; American Radiator Co. v. Plumbing Heating Co., 277 Mo. 548, 209 S.W. 56. (5) Respondents' opinion did not hold that a failure to issue alias or pluries process for a not-found defendant at each succeeding term of court works a discontinuance of the cause, and, therefore, respondents' opinion does not conflict with Ferber v. Brueckl, 322 Mo. 892, 17 S.W.2d 524. Opinion, St. Louis Ct. of App., Relator's Abs., pp. 18-25, incl., 148 S.W.2d 109; Ferber v. Brueckl, 322 Mo. 892, 17 S.W.2d 524.
Action to quash an opinion of a court of appeals in Bennett v. Metropolis Pub. Co., 148 S.W.2d 109. In that case the trial court sustained a demurrer to the petition and accordingly entered judgment for the defendant. On plaintiff's appeal, the judgment was affirmed. The material facts, as stated in the opinion, follow:
"This is an action to recover damages for libel. The petition alleges that defendant is a corporation organized and existing under and by virtue of the laws of the State of Florida, with its principal office and place of business at Miami, Florida, and engaged in the publishing business, particularly in the printing, distributing, and circulation of a newspaper named and known as the Miami Daily News; that defendant published in its newspaper two articles, on July 16, 1929, charging plaintiff with plotting the murder of one Oil King, a bankrupt butcher of West Frankfort, Illinois, in order to collect life insurance plaintiff held as a security for a debt.
"The petition was filed on July 15, 1931, and a writ of summons was thereupon issued.
"On June 28, 1933, the cause was dismissed for failure to prosecute.
"On August 31, 1933, the order of June 28, 1933, dismissing the cause for failure to prosecute, was set aside, and the cause was reinstated on the docket, and an alias summons was ordered issued. Pursuant to this order an alias summons was duly issued.
"On October 27, 1933, plaintiff filed an affidavit for an attachment and a writ of attachment was ordered to issue. Pursuant to this order a writ of attachment was duly issued.
"On October 13, 1938, on oral motion of the plaintiff, the cause was removed from the dismissal docket, on which it had been placed by the clerk, and an alias summons and alias writ of attachment were ordered to issue. Pursuant to this order an alias summons and alias writ of attachment were duly issued.
"On December 9, 1938, on application of the plaintiff a pluries summons and pluries writ of attachment were ordered issued. Pursuant to this order such summons and writ were duly issued.
"On December 19, 1938, on application of plaintiff, writs of summons and attachment were ordered issued to the sheriff of Cole County. Pursuant to this order such writs were duly issued.
"On January 5, 1939, the summons was returned non est, and the writ of attachment was returned showing it was duly executed by garnishment.
"On January 11, 1939, defendant entered its appearance and filed its answer to the petition.
"On January 18, 1939, plaintiff having failed to give an attachment bond, the writ of attachment was dissolved.
"On January 27, 1939, by leave, defendant withdrew its answer and filed a special demurrer to the petition, alleging as ground therefor that it appears on the face of the petition and the record of the proceedings in the cause that plaintiff's cause of action, if any he had, accrued more than two years before the commencement of the action, and that the action has become completely barred by the statutes of limitations of the states of Missouri and Florida, to-wit, sec. 864, R.S. Mo. 1929, Mo. Stat. Ann., sec. 864, p. 1152, and sec. 4663 of Compiled Laws of Florida, 1927.
"Both of these statutes provide that an action for libel can only be commenced within two years after the cause of action shall have accrued.
"On March 15, 1939, as shown by the short transcript filed here, the court sustained defendant's special demurrer and dismissed plaintiff's action."
[186] On the above stated facts, the opinion of said court ruled as follows:
"In the present case, according to the records of the trial court, of which the court had judicial knowledge when he came to pass upon the demurrer, the plaintiff, after the filing of the petition and the issuance of the writ of summons, on July 15, 1931, permitted two years and more to elapse before asking for an alias writ of summons or a writ of attachment, and then permitted five years more to elapse before asking for any further writ. In other words, there were two intervals of dormancy between the issuance of writs, one of two years and more and another of five years.
"If the interval of two years was not sufficient to interrupt the continuity of the action, surely the interval of five years was. To hold that a plaintiff in an action against a nonresident may in such fashion prolong a two-year period of limitation to a period of nine years would be to put it in the power of any plaintiff in such an action to practically abrogate the statute.
"But plaintiff urges in argument that he was entitled to keep his action alive indefinitely without the issuance of process while searching for an agent of defendant in the state upon whom to get personal service or while searching for property of defendant in the state upon which to levy an attachment. We know of no rule or reason to allow the plaintiff to thus prolong the period of limitation. If he could do this, then why could he not with equal propriety withhold the filing of his petition while he prosecutes his search for such agent or property?"
Plaintiff contends that the above ruling is in conflict with Ferber v. Brueckl, 322 Mo. 892, 17 S.W.2d 524. In that case we ruled that failure to have process issued at every succeeding term for a non-found defendant was not an abandonment of the cause. The application of the statute of limitations was neither considered nor ruled in that case. The said court further ruled as follows:
"Plaintiff concedes, as he ought, that in so far as the demurrer pleads limitation in bar of plaintiff's action it is merely a special demurrer, and not a speaking demurrer, since in this respect it raises no issue of fact but purely an issue of law. However, as pointed out and stressed by plaintiff, the demurrer goes further than this, and alleges affirmative matters. But, while this is so, it alleges no fact, not appearing on the face of the petition or in the records of the court in the cause, essential to show plaintiff's action is barred by limitation.
"It is fundamental that courts are bound to take judicial notice of their own records in the same cause. (Citing cases.) And, of course, alleging in a demurrer what the court judicially knows from its own records in the cause raises no issue of fact.
Plaintiff also contends that this ruling conflicts with decisions of this court, citing cases. In the cited cases we ruled that the trial court could not consider exhibits attached to the petition, ordinary testimony or the record in another case in ruling a demurrer to the petition. In effect, the Court of Appeals, in the instant case, ruled that on demurrer to the petition the records in the same case must be considered as if alleged in the petition. The said question has not been ruled by this court. In this connection it may be stated that Sec. 955, R.S. 1939, provides that "neither presumptions of law nor matters of which judicial notice is taken need be stated in the pleadings." The said court further ruled as follows:
"It is well settled that if the petition shows on its face that the bar of the statute of limitations has become complete a demurrer stating that as a ground is proper, and if the action is such that the bar may be obviated by some exception in the statute the facts stated in the petition should show such exception. In other words, the exception relieving plaintiff from the bar of the statute should be pleaded by him. (Citing cases.)"
Plaintiff also contends that this ruling conflicts with State ex rel. Gentry v. Bray (Monarch Transfer Storage Co.), 323 Mo. 562, l.c. 575, 20 S.W.2d 60, l.c. 62, wherein we stated that "the plea of the statute of limitations as a ground of demurrer in a case of this character can only be made when the statute creates an absolute bar by the mere lapse of time, without any exception, if the necessary facts therefor appear in the petition." The statement is meaningless. If so, there is no conflict.
The writ of certiorari should be quashed. It is so ordered. All concur.