B. F. Glover & Son Commission Co. v. Abilene Milling Co.

• Citation: 116 S.W. 1112,136 Mo. App. 365
• Parties: B. F. GLOVER & SON COMMISSION CO. v. ABILENE MILLING CO. et al.
• Decision Date: 01 March 1909
• Court: Court of Appeal of Missouri (US)

116 S.W. 1112

136 Mo. App. 365

B. F. GLOVER & SON COMMISSION CO. v. ABILENE MILLING CO. et al.

Kansas City Court of Appeals. Missouri.

March 1, 1909.

Rehearing Denied March 29, 1909.

1. ATTACHMENT (§§ 122, 136, 154, 324) — AMENDMENTS — AUTHORITY OF COURT.

Under Rev. St. 1899, § 657 (Ann. St. 1906, p. 674), authorizing the court to add the name of any party or correct a mistake in the name of a party, the court in attachment against a corporation and persons named "doing business as the A. Milling Company," may, at the inception of the trial and at plaintiff's request, amend the petition, affidavit, bond, writ of attachment, and sheriff's return, by erasing the name of the corporation and the individuals named as defendants, and substitute other individuals, copartners, leaving the original quoted words in the caption.

2. ATTACHMENT (§ 292) — AMENDMENTS — RIGHT OF INTERPLEADER.

An interpleader in attachment cannot complain of the court amending, at the request of plaintiff, the petition, affidavit, bond, writ, and sheriff's return, since his interplea is a separate proceeding, and since he must recover on the strength of his own title.

Appeal from Circuit Court, Jackson County; Herman Brumback, Judge.

Action by the B. F. Glover & Son Commission Company against the Abilene Milling Company, in which the Abilene National Bank interpleaded. From a judgment for plaintiff, the interpleader appeals. Affirmed.

Beardsley, Gregory & Kirshner, for appellant. Meservey & German, for respondent.

BROADDUS, P. J.

This is a case of interplea. On December 6th plaintiff instituted suit by attachment against the following named parties: "Abilene Milling Company, a corporation, and W. H. Yohe and ____ Glade and John Doe, doing business as Abilene Milling Company." An affidavit and bond in attachment were made by plaintiff, and a writ of attachment was issued, delivered to the sheriff, and by him levied on a car load of flour, which he sold as perishable property, and the proceeds in the sum of $890, is now in his hands. On February 4, 1906, the Abilene National Bank filed its interplea in the cause, claiming the money in the hands of the sheriff. Upon trial of the interplea, the court gave a peremptory instruction to find for the plaintiff, and the interpleader appealed.

At the inception of the trial the plaintiff asked and obtained leave to amend the petition, affidavit, bond, and writ of attachment by naming the individual partners composing the firm, the Abilene Milling Company. The clerk was permitted to amend the attachment writ, and the sheriff, also, was permitted to amend his return on the writ of attachment, to conform to the other amendments. The sureties on the attachment bond appeared also and joined in the request to amend the papers as stated. The interpleader objected to the amendments. The amendment consisted in erasing the names of the following defendants: "Abilene Milling Company, a corporation, and W. H. Yohe and ____ Glade and John Doe" — and substituting the following names: "F. A. Glade, F. M. Glade, A. A. Glade, A. W. Glade, Mrs. Maggie Flenner, and Miss May Flenner, copartners," and leaving the original words in the caption, "doing business as the Abilene Milling Company." The effect of the amendment was to dismiss as to the Abilene Milling Company as a corporation "and W. H. Yohe and ____ Glade and John Doe," and make an entire substitution of new names of the persons doing business as the Abilene Milling Company.

The question presented by the appeal is whether the amendment was permissible under the Code. A short review of the decisions of the appellate courts of this state shows they are not in entire accord on the question. Judge Rombauer, in Courtney v. Sheehy, 38 Mo. App., loc. cit. 293, said: "It was never held that section 3567 (now 657 Rev. St. 1899 [Ann. St. 1906, p. 674]) of the Revised Statutes, * * * which provides that the court in furtherance of justice may add the name of any party, or correct the mistake in the name of a party, authorizes the court to add, by way of amendment, the name of the only substantial party plaintiff or defendant, as that would be in effect the institution of an entirely new suit...