Lumpkin v. Collier

Decision Date31 October 1878
PartiesLUMPKIN, Appellant, v. COLLIER et al.
CourtMissouri Supreme Court

Appeal from Daviess Circuit Court.--HON. S. A. RICHARDSON, Judge.

In the original petition the plaintiff is designated as Thomas J. Flint at the relation and to the use of George W. Lumpkin;” in the amended petition, as George W. Lumpkin.” In the latter Thomas J. Flint is made co-defendant with the defendants named in the original petition. Both petitions state substantially that, on or about the 22nd day of February, 1872, the said Lumpkin was the owner and in possession of certain personal property, described; that, on or about that day, Thomas J. Flint, sheriff of Daviess county, did, wrongfully and without leave, but under color and by virtue of a certain execution described, levy upon, seize, take and carry away said property; that, thereupon, said Lumpkin duly notified said sheriff of his claim to the property, and the sheriff, thereupon, notified the plaintiff in said execution of the claim, and refused to sell unless the plaintiff in the execution would give him an indemnity bond; whereupon, the plaintiff in said execution delivered to the sheriff the bond filed, whereby the obligors therein bound themselves to hold said sheriff harmless from any liability incurred by him in selling the property under said execution.

The petition, as originally drawn, then proceeded as follows: Plaintiff further says that upon the execution and delivery of said bond the said Thomas J. Flint, sheriff as aforesaid, sold and disposed of the personal property above described, and the same thereby became and was a total loss to the plaintiff, Lumpkin. Plaintiff says that the defendants have not complied with the conditions of their said bond, but alleges a breach of the conditions thereof in this, that whereas, the said Thomas J. Flint, as sheriff aforesaid, under and by virtue of the execution aforesaid, on the 16th day of March, in the year 1872, did sell the property aforesaid to various persons to the damage of the plaintiff in the sum of $1300, which sum, nor any part thereof, the defendants have not paid nor satisfied, but have failed and refused, and still fail and refuse to satisfy said damages or any part thereof. Wherefore plaintiff says that he is damaged in the sum of $1300, and prays judgment that said bond may be declared forfeited and for judgment for the amount of damages aforesaid, with interest thereon from the 16th day of March, 1872, and for such other relief as plaintiff may be entitled to.

In place of this, the amended petition proceeded as follows: That upon the execution and delivery of said bond to the said Flint, he (said Flint) without leave and wrongfully and against the will of plaintiff, and by the procurement and instigation of said defendants Collier, Davis and Cravens, proceeded to sell, and did sell and dispose of said goods, wares and merchandise, to satisfy said execution, whereby the same were wholly lost to plaintiff. Wherefore, plaintiff says he is damaged in the sum of $1300, and for which, with interest, he asks judgment.

Defendants filed a motion to strike out the amended petition for the reasons following: 1. Because a new, independent and different cause of action is set out in said amended petition from the cause of action set out in the original petition in this cause. The cause of action set out in the original petition in this cause, being an action upon a writing obligatory and brought upon a breach of the covenants of said writing obligatory, in the name of Thomas J. Flint, the covenantee therein, to the use of the plaintiff in this cause; while the amended petition is an action of trespass, or in the nature of an action of trespass against the defendants Collier, Davis, Cravens and Flint, which last named defendant was the plaintiff in the original petition, and in whose name alone said action could be prosecuted. 2. Because the plaintiff cannot amend his petition so as to recover upon another separate and distinct cause of action, requiring different proofs, different parties and a different judgment.

This motion was sustained by the court, and plaintiff electing to stand upon his petition, final judgment was rendered for defendants.Shanklin, Low & McDougal for appellants, cited Smith v. Palmer, 60 Mass. (6 Cush.) 513; Cassel v. Cooke, 8 Serg. & R. 287; Newlin v. Palmer, 11 Serg. & R. 102; Lottman v. Barnett, 62 Mo. 159; Wilhelm's Appeal, 79 Pa. St. 120; Thompson v. Moseley, 29 Mo. 479.

Luther T. Collier for respondents, cited 2 Wag. Stat., § 2, p. 1012; Jamison v. Copher, 35 Mo. 483; Ederlin v. Judge, 36 Mo. 350; Newton v. Allis, 12 Wis. 378; Larkin v. Noonan, 19 Wis. 82; Ball v. Claflin, 5 Pick. 303; Woodruff v. Dickie, 31 How. (N. Y.) 164; Supervisors v. Decker, 34 Wis. 378; Wiley v. Moore, 2 Wend. 259; McNair v. Compton, 35 Pa. St. 23; Whitcomb v. Hungerford, 42 Barb. (N. Y.) 177; Little v. Morgan, 11 Foster (N. H.) 499; Williams v. Hollis, 19 Ga. 313; Martin v. Russell, 3 Scam. 343; Cartwright v. Chabert, 3 Texas 261; Thompson v. Phelan, 2 Foster (N. H.) 339; Carpenter v. Gookin, 2 Vt. 495.

HENRY, J.

The only question for determination is, whether the amendment was allowable under our practice act. The original was an action ex contractu. The suit was on a bond of indemnity given to the sheriff to induce him to seize certain property under an execution to which the plaintiff, relator, laid claim. The cause of action stated in the amended petition was trespass for seizing, taking and carrying away personal property alleged to have been the property of plaintiff. Appellant's counsel rely upon section 7 of our practice act, (2 Wag. Stat., p. 1035,) which is as follows: “A petition or answer may be amended by the proper party, of course, without costs, and without prejudice to the proceedings already had, at any time before the answer or reply thereto shall be filed.”

There is no case in our reports which sanctions such an amendment as was made in this. In Lottman v. Barnett, 62 Mo. 159, the original petition was filed by plaintiff against eight defendants, of whom Barnett was one, stating...

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