SUPPLEMENTAL OPINION It has been suggested to the writer of the opinion in the above case that the opinion erroneously held the action of the trial court, sustaining the motion to dismiss the petition on the ground that it failed to state a cause of action, was a final judgment from which an appeal could be taken. It has been suggested that Sec. 101 of Our Code, Laws 1943, page 385, has no bearing on this question. The case of Edwards v. Sittner, 206 S.W.2d 578, l.c. 580 (6, 7), recently published, was referred to as holding to the contrary. We have given the question further attention and have reached the following conclusions. *Page 536
It is true that under the new code the sufficiency of a pleading to state a cause of action or defense must be raised by a motion to dismiss as provided in Sec. 62 of the code. Under the old practice such a question was presented by a demurrer. Thus far the motion to dismiss and the demurrer are similar. There is, however, a vast difference as to the effect of a ruling on a motion to dismiss and a ruling on a demurrer under the old practice. Under the practice as formerly in vogue, if a demurrer to a petition on the ground no cause of action was stated was sustained, a plaintiff had the right under the statute then in force, but now repealed, to file an amended petition. Sec. 925 R.S. Mo., 1939, Mo. R.S.A. Hence, the rulings of various cases, that a plaintiff's petition, but not his cause of action, was dismissed by the sustaining of a demurrer. Therefore, the sustaining of a demurrer was not a final judgment See Juvenal v. Heim, 238 Mo. App. 217, 177 S.W.2d 672; State ex rel. Adams v. Stockton, 123 S.W.2d 611. If a third petition was held insufficient on demurrer then the trial court was in duty bound[911] to enter a final judgment against the plaintiff. See Sec. 948 R.S. Mo., 1939, Mo. R.S.A. Under the old practice, therefore, sustaining a demurrer did not have the effect of dismissing the cause of action because plaintiff had the right as a matter of law to file an amended petition. Sec's. 925 and 948, supra, have been repealed and cases based upon those sections cease to be authority on the question now before us.
Under the new code a trial court may permit a plaintiff to file any number of amended petitions if in the opinion of the court justice so requires. The statute says, ". . . leave shall be freely given when justice so requires." Sec 81 of the New Code, Laws 1943, page 378. See also Gerber v. Schutte Inv. Co. et al.,354 Mo. 1246, 194 S.W.2d 25. However, a trial court may, under the new code, determine on the first motion to dismiss that the petition filed is insufficient and that it would be useless to give leave to amend because a cause of action could not be stated. Under the new code a party does not have the right, as a matter of law, as he did under the old practice, to file an amended petition after a motion to dismiss on the ground of failure to state a cause of action has been sustained. Sec. 81 of the code merely directs the trial court to be liberal in granting leave to file amended pleadings. Sec. 126 of the New Code, Laws 1943, page 390, provides that an appeal may be taken from a final judgment. Neither Sec. 81 or Sec. 126 of the new code, supra, have any bearing on the question of the effect of an order sustaining a motion to dismiss. In our opinion Sec. 101 does govern the question. This section plainly states: "A dismissal with prejudice operates as an adjudication upon the merits." The section also provides:
". . . any involuntary dismissal other than one for lack of jurisdiction or for improper venue shall be with prejudice unless the court in its order for dismissal shall otherwise specify." *Page 537
Therefore, an order of a trial court sustaining a motion to dismiss on the ground that no cause of action is stated in an adjudication upon the merits as well as a dismissal with prejudice. This is true unless the trial court shall otherwise specify. The conclusion seems to be inescapable that such an order, under the plain terms of the statute, is a final judgment, the reason being that the statute so says. If a plaintiff desires to file an amended petition it is up to him to ask leave to do so. The law no longer gives him that right as a matter of law. If he does not wish to file an amended petition he has the right to appeal and have the question of the sufficiency of his pleading determined by an appellate court. The trial court may thereafter permit an amended petition to be filed by sustaining a motion for new trial (Gerber v. Schutte Inv. Co., 354 Mo. 1246,194 S.W.2d 25, supra); or by setting aside its judgment within thirty days (Sec. 118) regardless of whether or not a motion for new trial has been filed.
We hold, therefore, that an order dismissing a petition because no cause of action is stated is a final judgment unless the trial court shall otherwise specify. It seems to the writer that rulings, such as in the case of Edwards v. Sittner, 206 S.W.2d 578, l.c. 580 (6, 7), carry into the new code procedural matters long followed under the old practice, but which were expressly omitted and discarded under the new code, and that the sections of law giving rise to that practice have been expressly repealed. Therefore, that part of the opinion holding to the contrary in the case of Edwards v. Sittner, supra, indicated by syllabi (6, 7), is hereby disapproved. It will be noted that the cases cited by the Court of Appeals, as for example, Juvenal v. Heim, supra, were expressly based upon the sections of law above discussed and now repealed.
The repealing of those sections and the enactment of Sec. 101, supra, certainly indicate that a new procedure was desired. Also to be considered is Sec. 59 abolishing demurrers. The courts should follow this new procedure and not engraft upon the law, or rather carry into the new practice matters which were expressly discarded.
It has been suggested that our ruling is in conflict with Federal Cases construing Sec. 41 (b) of the Federal Code, [912] which it is said was the basis for Sec. 101 of our code. It will be noted, however, that Rule 41 (b) of the Federal Code does not contain the provision that a dismissal such as we have before us now shall be with prejudice. If Sec. 101 is based upon the Federal Rule, then we must give all the more emphasis to the new clause that was inserted in Sec. 101 and is not contained in Rule 41 (b). We think this difference is sufficient justification for not following the federal practice.
Upon further consideration of this case we are satisfied with the result reached in our original opinion. This supplemental opinion *Page 538 has been prepared for the purpose of further explaining our ruling. Bohling and Barrett, CC., concur.