69 S.W. 296 (Mo. 1902), Grigsby v. Barton County

Citation:69 S.W. 296, 169 Mo. 221
Opinion Judge:BRACE, P. J.
Party Name:GRIGSBY et al. v. BARTON COUNTY et al., Appellants
Attorney:Thurman, Wray & Timmonds for appellants. Cole & Burnett for respondents Grigsby et al.; E. L. Moore for respondent Barton county.
Case Date:June 18, 1902
Court:Supreme Court of Missouri

Page 296

69 S.W. 296 (Mo. 1902)

169 Mo. 221

GRIGSBY et al.


BARTON COUNTY et al., Appellants

Supreme Court of Missouri, First Division

June 18, 1902

Appeal from Barton Circuit Court. -- Hon. W. L. Jarrott, Judge.


Thurman, Wray & Timmonds for appellants.

(1) Grigsby's original petition stated no cause of action in himself. It alleges that he executed a school-fund mortgage to Barton county; that a mistake was made in describing the property; that subsequently he (Grigsby) sold the premises to defendant Poole, and his deed of conveyance to Poole "was made subject to said mortgage of six hundred and twenty-five dollars, and of the consideration of such conveyance the amount of said mortgage debt was not paid to plaintiff;" that defendant was informed and understood that said mortgage covered the land conveyed to him, and prayed for decree reforming the mortgage. Under the allegations of the petition, Grigsby had parted with the land, he had no further interest therein, and the only claim, if any, that he would have, would be an action at law for the balance of the purchase price. (2) In the paper called "second amended petition," Grigsby joins with him four new parties plaintiff; so does the first amended petition which is substantially the same as the second amended petition; sets up the same state of facts as the original petition with the further allegations that the four new plaintiffs were securities on the school-fund bond executed by Grigsby; that Grigsby is insolvent; that Poole assumed and agreed to pay off the mortgage; that the land described in the mortgage is not of sufficient value to pay the mortgage debt; and that they (the four new plaintiffs), in case of foreclosure, would have part of the debt to pay. This second amended petition (and the first amended petition is substantially the same) does not state a cause of action in favor of Grigsby for the reasons set forth under point 1, and for the further reason that it alleges him to be insolvent and makes no pretense or claim that he is in any danger. It states no equitable cause of action in favor of the four new plaintiffs. They have paid nothing; they may never have any to pay; it makes no allegation or pretense that defendant Poole is not financially responsible. (3) A petition can not be so amended, even under the liberal provisions of the Code, as to state an entirely different cause of action...

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