demurrer rule in Missouri

1946Louis Suburban Railway Company, 51 S.W.2d 1027 , l.c. 1029.] This case must fail if the existence of any one of the above mentioned facts is left to conjecture or speculation; but, in establishing their existence, plaintiff may have the benefit of such of defendant's evidence as is consistent with his theory of the case and with his own testimony, Elkin v. St.

1939Abel v. Gates, 190 Mo. 540 , l.c. 553.] Nor can prohibition be invoked as a substitute for appeal or writ of error. [State ex rel.

1939Johnson v. Sevier, 339 Mo. 483 , l.c. 491.] Prohibition will not take the place of a demurrer to test the pleadings: "If the case stated, or attempted to be stated, in the petition, is of a subject over which the circuit court has no jurisdiction, yet the court gives indication of a purpose to entertain it, an application for a writ of prohibition would be relieved, but if it be that the petition merely states defectively a cause of the nature of which the court has jurisdiction a writ of prohibition will not issue merely because it is feared that the court might erroneously decide that it *Pa

1928In ruling upon a demurrer the rule has long been established that evidence in support of the cause of action must be accepted as true, and that the plaintiff is entitled to every reasonable inference which may be drawn therefrom. [Woods v. Poultry Co., 259 S. W. 888 , 891; Fisher v. Const. Co., 263 S. W. 1022 , 1025; Burrows v. Likes, 180 Mo. App. 447 , 166 S. W. 643 ; Sandretto v. Railway, 265 S. W. 856 , 858; Harris v. Railway Co., 89 Mo. 233 ; Kincaid v. Laundry Co., 189 S. W. 1189 .] In support of his position that the ease should not be submitted to the jury, defendant relies chiefly upon

1928In ruling upon a demurrer the rule has long been established that evidence in support of the cause of action must be accepted as true, and that the plaintiff is entitled to every reasonable inference which may be drawn therefrom. [Woods v. Poultry Co., 259 S. W. 888 , 891; Fisher v. Const. Co., 263 S. W. 1022 , 1025; Burrows v. Likes, 180 Mo. App. 447 , 166 S. W. 643 ; Sandretto v. Railway, 265 S. W. 856 , 858; Harris v. Railway Co., 89 Mo. 233 ; Kincaid v. Laundry Co., 189 S. W. 1189 .] In support of his position that the ease should not be submitted to the jury, defendant relies chiefly upon

1928In ruling upon a demurrer the rule has long been established that evidence in support of the cause of action must be accepted as true, and that the plaintiff is entitled to every reasonable inference which may be drawn therefrom. [Woods v. Poultry Co., 259 S. W. 888 , 891; Fisher v. Const. Co., 263 S. W. 1022 , 1025; Burrows v. Likes, 180 Mo. App. 447 , 166 S. W. 643 ; Sandretto v. Railway, 265 S. W. 856 , 858; Harris v. Railway Co., 89 Mo. 233 ; Kincaid v. Laundry Co., 189 S. W. 1189 .] In support of his position that the ease should not be submitted to the jury, defendant relies chiefly upon

1928In ruling upon a demurrer the rule has long been established that evidence in support of the cause of action must be accepted as true, and that the plaintiff is entitled to every reasonable inference which may be drawn therefrom. [Woods v. Poultry Co., 259 S. W. 888 , 891; Fisher v. Const. Co., 263 S. W. 1022 , 1025; Burrows v. Likes, 180 Mo. App. 447 , 166 S. W. 643 ; Sandretto v. Railway, 265 S. W. 856 , 858; Harris v. Railway Co., 89 Mo. 233 ; Kincaid v. Laundry Co., 189 S. W. 1189 .] In support of his position that the ease should not be submitted to the jury, defendant relies chiefly upon

1928In ruling upon a demurrer the rule has long been established that evidence in support of the cause of action must be accepted as true, and that the plaintiff is entitled to every reasonable inference which may be drawn therefrom. [Woods v. Poultry Co., 259 S. W. 888 , 891; Fisher v. Const. Co., 263 S. W. 1022 , 1025; Burrows v. Likes, 180 Mo. App. 447 , 166 S. W. 643 ; Sandretto v. Railway, 265 S. W. 856 , 858; Harris v. Railway Co., 89 Mo. 233 ; Kincaid v. Laundry Co., 189 S. W. 1189 .] In support of his position that the ease should not be submitted to the jury, defendant relies chiefly upon

1913In the case of Shohoney v. Railroad, 231 Mo. 131 , in discussing motions of this character, Judge Lamm; states' the rule as follows: “From the proposition that a. motion to strike out may in some instances fill the office of a demurrer the doctrine has been deduced that a motion which fills such office should be judged of by the rules pertaining to demurrers, i. e., 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 a demurrer may be applied to such motions.” The motion in this case comes within the scope of the abov

1910It is true that a foreign corporation who has not complied with the laws of this State cannot maintain an action in the courts of this State, but this is a matter of defense, and to be available, must be pleaded by the defendant; hence, it is not necessary for plaintiff to allege in its petition that it had complied with the provisions of our statutes in relation to foreign corporations, and a demurrer ought not to be sustained for that reason. [Scientific American Club v. Horchitz, 128 Mo. App. l. c. 579, 106 S. W. 1117 ; Parlin & Orendorf Co. v. Boatman, 84 Mo. App. l. c. 72; The American In

1910It is true that a foreign corporation who has not complied with the laws of this State cannot maintain an action in the courts of this State, but this is a matter of defense, and to be available, must be pleaded by the defendant; hence, it is not necessary for plaintiff to allege in its petition that it had complied with the provisions of our statutes in relation to foreign corporations, and a demurrer ought not to be sustained for that reason. [Scientific American Club v. Horchitz, 128 Mo. App. l. c. 579, 106 S. W. 1117 ; Parlin & Orendorf Co. v. Boatman, 84 Mo. App. l. c. 72; The American In

1910It is true that a foreign corporation who has not complied with the laws of this State cannot maintain an action in the courts of this State, but this is a matter of defense, and to be available, must be pleaded by the defendant; hence, it is not necessary for plaintiff to allege in its petition that it had complied with the provisions of our statutes in relation to foreign corporations, and a demurrer ought not to be sustained for that reason. [Scientific American Club v. Horchitz, 128 Mo. App. l. c. 579, 106 S. W. 1117 ; Parlin & Orendorf Co. v. Boatman, 84 Mo. App. l. c. 72; The American In

1900The errors complained of are the refusal of the court to sustain the demurrer to the evidence, the admission of incompetent evidence for the plaintiff, and the rejection of competent evidence for the defendant; the giving of improper instructions for the plaintiff, and refusing proper instructions for the defendant, and the refusal of the court to grant a new trial and arrest the judgment on proper motions filed in due time. (1.) It is contended foir the defendant that the court ought to have sustained the motion in arrest of judgment On the ground that the petition did not state facts suffici

1892Babb v. Bruere, supra. It follows that the action of the court in sustaining the demurrer was error, and that the judgment must be reversed and the cause remanded with directions to the circuit court to enter judgment for plaintiff in conformity to. the views herein expressed,- which is ordered accordingly.

1874Bayne, 52 Mo., 531 .) As the defendant offered no evidence to impeach the testator’s innocence as holder of the notes, the instruction which the court gave for plaintiff was in the nature of a demurrer to the defense as proved or offered to he proved, and was therefore a proper ruling as this case stood before the court.