Bowen v. Buckner

• Decision Date: 02 June 1913
• Citation: 157 S.W. 829
• Parties: BOWEN v. BUCKNER.
• Court: Missouri Court of Appeals

157 S.W. 829

BOWEN v. BUCKNER.

Kansas City Court of Appeals. Missouri.

June 2, 1913.

1. LIMITATION OF ACTIONS (§ 127) — AMENDMENT OF PLEADINGS.

Amendments are liberally allowed to save a case from the statute of limitations when the cause of action is not totally changed.

2. LIMITATION OF ACTIONS (§ 121) — AMENDMENT — DESIGNATION OF PARTIES — MISNOMER.

Where plaintiff, having been in business under the name Kansas City View Company, which had no existence as a corporation, instituted a suit in that name to recover on an account, the court, after limitations had run, properly permitted an amendment of the title substituting plaintiff's individual name with the words, "doing business as Kansas City View Company," as plaintiff, since the erroneous designation was a mere misnomer of the real party in interest and not a nullity because of a lack of legal entity in the party named as plaintiff.

Appeal from Circuit Court, Jackson County; T. J. Seehorn, Judge.

Action by C. K. Bowen, doing business as the Kansas City View Company, against Thomas B. Buckner. From a judgment dismissing an appeal from a justice of the peace, plaintiff appeals. Reversed and remanded.

E. H. Wright, of Kansas City, for appellant. J. I. Williamson and T. B. Buckner, both of Kansas City, for respondent.

JOHNSON, J.

This suit was commenced July 27, 1910, before James H. Richardson, a justice of the peace for Kaw township, Jackson county, Mo., upon an account. The statement filed by plaintiff was made out on a printed billhead of the "Kansas City View Company," and stated that on August 11, 1905, that concern had made and delivered to defendant certain portraits for the price of $100. The statement did not disclose whether or not the Kansas City View Company was a corporation or other artificial entity, but at the top in one corner the name "C. K. Bowen, President," was printed in small type. Summons was issued in the name of the Kansas City View Company, as plaintiff, and served on defendant, who afterward appeared before the justice and on September 15, 1910, filed a motion to dismiss the action on the grounds that "plaintiff is not a corporation; that there is no such person as the Kansas City View Company; that said suit was not brought by the real party in interest; and that the Kansas City View Company has no legal capacity to sue in the courts of this state." The court overruled the motion and allowed the statement to be amended by the substitution as plaintiff of "C. K. Bowen, doing business as Kansas City View Company."

The suit was commenced about two weeks before the account would have been barred by the statute of limitations, but the amendment was made after that date. Defendant filed an answer in which he attacked the amendment and pleaded the statute of limitations. On successive changes of venue taken by the respective parties the suit finally came before M. H. Joyce, another justice of the peace for Kaw township, where it was tried, resulting in a verdict for defendant. Plaintiff appealed to the circuit court, and defendant moved to dismiss the appeal on the following grounds:

"First. Because this suit, as appears by the record, was originally instituted by the Kansas City View Company, which is not a legal being and is not possessed of the legal capacity to sue or be sued.

"Second. Because the pretended amendment of the pretended cause of action is and was a nullity because not made as by law required.

"Third. Because, as appears by the record, said pretended amendment was attempted to be made after said alleged cause of action was barred by the statute of limitations.

"Fourth. Because said attempted amendment was a nullity for the reason that there was no action pending at the time and nothing to amend by."

This motion was sustained, and the appeal dismissed, whereupon plaintiff, in due course of procedure, brought the case here by appeal.

The parties agree that the Kansas City View Company had no corporate existence. It was the trade-name under which Bowen was doing business with the public, and the determinative question before us is whether or not an action brought under that name by Bowen, the real party in interest, was a nullity because of a lack of legal entity in the party named as plaintiff, or, at most, was a mere misnomer of the real party in interest, and therefore a defect that might be cured by amendment. If a mere misnomer, the amendment did not change the cause nor inject a new party into the action, and in that view the issue of limitation would drop out of the case, since the action was instituted before the account would have become barred had no suit been brought upon it.

The courts of this state have held repeatedly that "amendments are allowed expressly to save the cause from the statute of limitations, and courts have been liberal in allowing them when the cause of action is not totally different." Lottman v. Barnett, 62 Mo. Loc. cit. 170; Lilly v. Tobbein, 103 Mo. loc. cit. 490, 15 S. W. 618, 23 Am. St. Rep. 887; Courtney v. Blackwell, 150 Mo. loc. cit. 271, 51 S. W. 668; Cytron v. Transit Co., 205 Mo. loc. cit. 700, 104 S. W. 109.

In House v. Duncan, 50 Mo. 453, the plaintiffs sued in their partnership name in a justice court, and the action was dismissed in the circuit court, notwithstanding plaintiff's offer to amend. The Supreme Court held: "We think the decision of the court was wrong. Amendments are favored and should be liberally made in furtherance of justice. When a cause is appealed from a justice of the peace to the circuit court, it is tried upon its merits, and the only prohibition against making amendments is that the cause of action shall not be changed. Wagn. Stat. 850, § 19. Now the rectifying the mistake in the name of a party or bringing in a new party in no wise changed the cause of action." A similar case was before the court in Beattie v. Hill, 60 Mo. 72, where it is said: "No new or different cause of action was proposed to be introduced. The controversy remained the same as it was originally, and the parties were the same; the only difference being that the statement cured a defect in the description of the parties." And in another case of the same nature (Fowler v. Williams, 62 Mo. loc. cit. 404) it is said: "Where the declaration is in the...