Bank of Tupelo v. Stonum
| Decision Date | 02 March 1926 |
| Citation | 281 S.W. 110,220 Mo.App. 152 |
| Parties | BANK OF TUPELO, APPELLANT, v. H. O. STONUM, RESPONDENT. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Dunklin County.--Hon. W. S. C. Walker, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
W. G Bray, of Senath, for appellant.
The court erred in sustaining respondent's demurrer to the petition. Where the cause of action or defense rests on the laws of another State, the law must be pleaded or proved; but where the foreign law is not the basis of the action, but merely an evidential part thereof, it may be proved without being pleaded. Hazelett v. Woodruff, 150 Mo. 534; McDonald v. Bankers Life, 154 Mo. 618; Lillard v. Lierly, 202 S.W. 1059. In the case at bar the laws of the State of Mississippi, governing the incorporation of banks and establishment of branch banks, were pleaded directly in the petition, as well as the Amendment to the Charter of The Bank of Tupelo, giving it authority to establish a branch bank, which was directly pleaded as an exhibit to the petition. See Sec. 1258, R. S. 1919. The petition stated a cause of action sufficient to go to trial upon, and under which a valid judgment could have been rendered. VanGraafieland v. Wright, 228 S.W. 465; Titus v. Tolle, 223 S.W. 885.
Hal H McHaney and Hugh B. Pankey, of Kennett, for respondent.
(1) Where three petitions in a cause have been adjudged wholly insufficient, no further petitions are permissible and a judgment upon the pleadings is proper. Sec. 1252, R. S. 1919; Bryan v. Louisville & N. R. Co., 292 Mo. 536, 238 S.W. 484. (2) Branch banks are invalid under the laws of Missouri. Sec. 11737, R. S. 1919; State v. National Bank, 249 S.W. 619, 263 U.S. 655; 68 L.E. 492, 44 S.Ct 213. (3) Where the pleader expects to rely upon the law of another State such law must be both pleaded and proven, and in such case, if such State was not subject to the common law, the court will apply the statute laws of the forum. State v. Lierly, 202 S.W. 1058; State v. Anderson, 272 Mo. 350, 198 S.W. 517; Furlong v. German American Press Assn., 189 S.W. 385; Stakebake v. Union Pacific Ry. Co., 185 S.W. 1166; Rialto Co. v. Miner, 183 Mo.App. 119, 166 S.W. 629; McDonald v. Bankers Life Assn., 154 Mo. 618; Clark v. Barnes, 58 Mo.App. 671; Hazelett v. Woodruff, 15 Mo. 534; Banchor v. Gregory, 9 Mo.App. 102; 18 A. L. R. Ann. 1198. (4) An exhibit attached to a petition is no part of the petition and cannot be considered by the court in passing on the sufficiency of the petition. Miner v. Sever, 255 S.W. 578; Highland Inv. Co. v. K. C. Computing Scales Co., 209 S.W. 895; Johnson v. Crowley, 207 S.W. 235.
Plaintiff seeks to recover the amount of a draft of $ 315.50 which it is alleged was cashed by plaintiff for defendant, payment on which had been refused. What is alleged to be the third amended petition filed by plaintiff was held bad on demurrer and plaintiff put out of court on a motion by defendant for judgment under the provisions of section 1252, Revised Statutes 1919. Plaintiff appealed.
The only questions involved here are whether the court was right in sustaining the demurrer to plaintiff's third amended petition, and if right on that question, whether the provisions of section 1292, Revised Statutes 1919, were applicable to this case. The respondent contends that three successive petitions filed by plaintiff had been adjudged insufficient and hence the judgment discharging defendant and for costs was properly rendered. Appellant's abstract of the record proper is incomplete. The respondent has filed an additional abstract of the record which purports to set out all the record entries in relation to the filing of amended petitions and what was done under them. We assume that respondent's abstract of the record is correct. It is as follows:
"The original petition in this cause was filed in the office of the clerk of the circuit court of Dunklin county, Missouri, returnable to the June Term, 1924, of said court.
Afterwards, to-wit: on the 9th day of July, 1924, defendant filed his answer.
Afterwards, to-wit: on the 8th day of August, 1924, plaintiff filed its amended petition.
Afterwards, to-wit: on the 14th day of August, 1924, defendant refiled his answer.
Afterwards, to-wit: on the 15th day of August, 1924, this cause coming on to be heard, the plaintiff and defendant, by their respective attorneys, announced ready for trial, and this cause was submitted to a jury who had been duly summoned, selected, qualified, chosen and sworn to try this cause, and the trial proceeded upon the evidence adduced by the plaintiff and the defendant. After which the plaintiff requested the submission to be set aside and took leave to amend its petition, and the cause was continued.
Afterwards to-wit: on the 12th day of November, 1924, at the November Term of said court, plaintiff, by leave of court, filed its amended petition and said cause was set for hearing on January 9, 1925.
Afterwards, to-wit: on January 9, 1925, this cause coming on to be heard, the plaintiff and defendant, by their respective attorneys, announce ready for trial, and this cause was submitted to a jury who had been duly summoned, selected, qualified, chosen and sworn to try this cause, and the trial proceeded upon the evidence adduced by the plaintiff and the defendant. After which the plaintiff requested the submission to be set aside and took leave to file its third amended petition, and the cause was continued.
Afterwards, to-wit: during vacation the plaintiff filed its third amended petition.
Afterwards, to-wit: on the 4th day of February, 1925, during the regular February Term, 1925, defendant filed his answer.
Afterwards, to-wit: on the 12th day of February, 1925, and at the same term of court, the answer of defendant was withdrawn and defendant filed his demurrer herein.
Afterwards, to-wit: on the 16th day of February, 1925, at the same term of court, the demurrer filed herein was sustained as to both counts of the petition, and upon motion for a judgment in favor of the defendant the court being fully advised in the premises, sustained said motion, and it was considered and adjudged by the court that the plaintiff take nothing by its writ against the defendant and that the defendant go hence without delay and recover of the plaintiff his costs and charges in this behalf expended, and have execution therefor."
The certified copy of the record filed in this court by the clerk of the circuit court of Dunklin county coincides with that printed in respondent's additional abstract. It nowhere appears in the record proper that any petition except the last amended petition was adjudged insufficient on demurrer or adjudged insufficient at all. It affirmatively appears from the additional abstract of record filed by respondent that the original petition was filed prior to the beginning of the June Term, 1924. That an answer was filed July 9, 1924; an amended petition was filed August 8, 1924; the answer of defendant refiled August 14, 1924. On August 15, the cause proceeded to trial and the evidence for both plaintiff and defendant heard whereupon at plaintiff's request the submission was set aside and plaintiff granted leave to amend its petition. At the November Term, 1924, plaintiff filed an amended petition and the cause was set for trial on January 9, 1925. On that day, the case proceeded to trial and after the evidence for both plaintiff and defendant was in, the submission was again set aside at plaintiff's request and leave granted plaintiff to file a third amended petition. This amended petition was thereafter filed in vacation. At the February Term, 1925, and on February 4th, the defendant filed an answer. On February 12, 1925, this answer was withdrawn and a demurrer filed. On February 16, 1925, the demurrer was sustained. A motion for judgment was then filed by defendant and was sustained.
In appellant's abstract of the record there appears a statement in the bill of exceptions from which it might be inferred that three petitions had been adjudged bad on demurrer but the entries in the court record show differently. In determining whether three petitions had been adjudged wholly insufficient so as to entitle the defendant to the benefit of the provisions of section 1252, Revised Statutes 1919, we are confined to an examination of the record of the circuit court. Statements appearing only in the bill of exceptions must be disregarded for the office of a bill of exceptions is to preserve what is not shown on the records of the court. The record of the court shows that the petition was twice amended voluntarily by plaintiff without any attack having been made by defendant upon the petition amended. As far as the record shows, the only petition on which any attack was made by defendant was the last amended petition which was attacked by demurrer. No prior petition had been attacked by either demurrer or motion to strike or in any other form and there appears to be no record of any petition except the last amended petition having been adjudged insufficient by the court. All the petitions previously filed by the plaintiff had been voluntarily abandoned and amended petitions filed of its own volition. A voluntary amendment of a petition by plaintiff when the petition has not been attacked by demurrer or motion is not an adjudication of insufficiency by the court. In order to bring a party plaintiff within the purview of this statute the record must show that the petitions had been attacked by demurrer or motion and that the court had adjudged the petitions insufficient. [Spurlock v. Mo. Pac. Ry. Co., 93 Mo. 13, 5 S.W. 15...
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