DISSENTING OPINION,
LAMM, P. J.No system of jurisprudence can be so wise and all-embracing that hard cases cannot be put in matters of practice. Might it have been better to allow appeals from orders overruling motions to make more definite and certain, or to strike out? Much can be said against that plan because it would clog the machinery of justice and breed delay. Now, delay tends toward a denial of justice. Justice shall be administered without delay, said the Great Charter and so says our Constitution. Experience taught, we have reached the settled rule of practice that joining issue on.the merits is a waiver of interlocutory rulings on motions and demurrers, except where the petition does not state a cause of action or there is a lack of jurisdiction of the subject. We should stand by that rule; for we have said so so often that the profession understands our position. If we unsettle the rule the door is opened wide for confusion to come in — certainty being of the very essence of good law. If the rule inherently and necessarily tended to injustice in the end, it would be different. But it will be found to rarely, if ever, so result.
(a) Take the case of a motion to elect. If causes of action are commingled which contradict each other, and are self-destructive through repugnancy, the point can be saved after answering, for in such case the petition does not state a cause of ^action. [White v. Railroad, 202 Mo. l. c. 562; Jordan v. Railroad, 202 Mo. l. c. 426-7.] Or if such répugnant causes go to *686the jury and a general verdict comes in, a motion in arrest lies. Or if there is no repugnancy and the evidence sustains the whole charge, what injury is done if the jury be properly instructed?
Take another case. If the petition commingle good with bad causes of action and a motion to strike out, or to elect, or a demurrer on that score is overruled and a general verdict comes in afterwards for plaintiff, the defendant ultimately suffers no wrong because a motion in arrest lies. [Mooney v. Kennett, 19 Mo. 551; Christal v. Craig, 80 Mo. l. c. 371.]
Take the case of a motion to make more specific and certain. If it be inadvertently overruled and issue is thereafter joined by answer and if the petition states a cause of action at all, the interest of defendant may be guarded in the introduction of testimony, or in instructions, or if, on the trial to the merits, a just result has not been reached, justice can be attained in the trial court by sustaining a motion for a new trial. Therefore, in the long run, no harm is done.
If however, a defendant refuse to stand on his motion to make more specific (lacking faith, maybe), but answers over and invokes and takes his chance of winning or losing on a trial on the merits, that chance, so invoked and taken, waives his motion by abandoning it, and heals the error, if any, in overruling it. Otherwise a court becomes a place of gambling on chances, and the time and expense of a trial are wasted if on appeal we lose sight of the very judgment appealed from, cutting behind it (though it may have been rendered on a fair trial free from error) and treading back and tripping up a respondent’s heels on an interlocutory ruling not affecting the merits of the judgment a whit. To overturn a verdict and judgment in that way is not in accord with our practice act. [R. S. 1899, secs. 865, 602.]
My learned brother’s opinion explodes, it seems to me, the doctrine of a line of cases, if we rule as he *687has written. For example: White v. Railroad, supra; Jordan v. Railroad, supra; Ewing v. Vernon Co., 216 Mo. 681; O’Brien v. Railroad, 212 Mo. l. c. 69 et seq.; Scovill v. Glasner, 79 Mo. 454 et seq.; Paddock v. Somes, 102 Mo. l. c. 235; McMillen v. City of Columbia, 122 Mo. App. 34. See also the cases criticised by him.
Therefore, I dissent to paragraph two of the opinion.
(b) Moreover in this case the attention of the trial court was not called by the motion for a new trial to the error, if any, in the ruling on the motion to make more specific. Such motion for a new trial, as its name indicates, assembles the reasons and grounds for a new tria,! and presents them to the trial judge anew in order that he may have one last chance to heal his own errors by opening the case to be heard without error. Under our practice act all motions must specify the grounds the movent relies on. If the ruling on the motion to make more specific was such ground, then it should have been so stated in the motion for a new trial. If it was not such ground it need not be stated, but if it was no such ground below, it is no such ground above. If a ruling on a motion to make more specific need not be challenged in the motion for a new trial, then, by the same token, rulings on continuances, applications for changes of venue, motions to strike out, motions to suppress depositions, motions for judgment on the pleadings, or for this, that or the other thing, need not be challenged in the motion for a new trial, but all of them come here for review though abandoned by that motion. I do not agree to that. Since, then, by discussing the motion to make more specific in paragraph two of his opinion, my Brother necessarily assumes it is here to discuss, it would seem the opinion by implication will mean to the profession that such motion gets here *688tbougli tlie ruling nisi be not challenged by the motion for a new trial.
Therefore, I dissent to such apparent inferential holding.
In all other respects I concur.
Woodson, J., agrees with these views.