ON MOTION FOR REHEARING. Respondents' motion for rehearing raises the point that under Sec. 112, Civil Code [Laws Mo. 1943, p. 387, Mo. R.S.A. Sec. 847.112] they did not waive their right to introduce evidence by "moving for a directed verdict" at the close of appellant's evidence. That section apparently refers to law cases tried to a jury, whereas this was an injunction suit in equity. But Sec. 100 of the Code [Laws Mo. 1943, p. 385, Mo. R.S.A. Sec. 847.100] would be applicable if the facts warranted. It provides: "After the plaintiff has completed the presentation of his evidence, the defendant, *Page 971 without waiving his right to offer evidence in the event the motion is not granted, or in the event that the motion is granted and the resulting judgment is later held erroneous, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief."
But respondents did not move for a dismissal or directed verdict. The record shows that at the end of appellant's case, respondents' counsel moved to strike all the appellant's evidence from the record on the ground that the petition failed to show a cause of action, as stated in his opening objection to the introduction of any evidence at the beginning of the trial. He also stated one or two legal reasons why the evidence was insufficient. The court said it would take the case subject to the objection, and inquired, "Is there anything further?" Appellant's counsel said "That is our case." The Court said, "If that is all, gentlemen, I will take it as submitted." Respondents' counsel acquiesced by silence and made no claim of any right or intention to introduce evidence in the event his motion to strike was overruled. In our opinion this motion was not the legal equivalent of a "motion to dismiss" within Sec. 100 of the Code.
The motion for rehearing or to modify is overruled.