Anderson v. Doran

• Citation: 211 S.W. 80
• Decision Date: 07 April 1919
• Docket Number: No. 13185.,13185.
• Parties: ANDERSON v. DORAN
• Court: Court of Appeal of Missouri (US)

211 S.W. 80

ANDERSON v. DORAN

No. 13185.

Kansas City Court of Appeals, Missouri,

April 7, 1919.

Appeal from Circuit Court, Platte County; Alonzo D. Nurnes, Judge.

"Not to be officially published."

Action by Ewing Anderson, by his next friend, Walter Anderson, against J. B. Doran, composing the firm of Weston Tobacco Warehouse Company. Judgment on appeal from Justice Court for plaintiff, and defendant appeals. Reversed.

Guy B. Park, of Platte City, for appellant. Terrence Riley, of Weston, and James H. Hull, of Platte City, for respondent.

TRIMBLE, J.

This suit originated in a justice's court. There the plaintiff sued the Weston Loose Leaf Tobacco Warehouse Company for the value of certain tobacco stored with it, and which plaintiff charged the company had converted. Summons was issued and served upon the said company, which was then, and is now, a corporation. A trial was had, resulting in a judgment for plaintiff, and the corporation appealed to the circuit court. There the case was again heard, resulting in a mistrial. Thereupon plaintiff filed an amended petition, in which the corporation, the Weston Loose Leaf Tobacco Company, was omitted, and "J. B. Doran, composing the firm of Weston Tobacco Warehouse," was inserted as defendant. Doran, appearing only for this purpose, filed a motion, striking at said amended petition on the ground that the substitution of him as defendant in the place of the corporation, the original defendant, was the substitution of one cause of action for another, and of one defendant for another, and that the court was without jurisdiction over the defendant or over the subject-matter of the suit. This motion was overruled, the defendant, Doran, excepting. Said defendant then filed a plea in the nature of a plea in abatement on the same grounds. This was also overruled, the defendant saving his exception. Thereafter the case was tried, and a verdict and judgment returned against said defendant, from which he has appealed.

There is no question but that the defendant, and the only defendant, in the justice's court was the corporation, and that after the amendment made in the circuit court, the only defendant was J. B. Doran an individual. There is no claim that they are the same party, nor is it seen how they could be.

Section 7585, R. S. 1909, provides that in cases appealed to the circuit court from the justice court "the same cause of action, and no other" shall be tried, provided that new parties, plaintiff or defendant, necessary to a complete determination of the cause of action, may be made. Section 7587, R. S. 1909, allows amendments after appeal to the circuit court, but no new item or cause of action not embraced or intended to be included in the original statement shall be added.

The substitution of an individual for a corporate defendant would be substituting one cause of action for another. Courtney v. Sheehy, 38 Mo. App. 290; Jordan v. Chicago & Alton R. Co., 105 Mo. App. 446, 79 S. W. 1155; Hajek v. Bohemian, etc., Benevolent Society, 66 Mo. App. 568; Hall v. School District, 36 Mo. App. 21.

The same cause of action must be tried in the circuit court on appeal that was tried in the justice court. Bushnell v. Louisville, etc., R. Co., 126 Mo. App. 63, ...