Bowen v. Buckner

• Decision Date: 02 June 1913
• Citation: 157 S.W. 829,171 Mo.App. 384
• Parties: C. K. BOWEN, doing business as THE KANSAS CITY VIEW COMPANY, Appellant, v. THOMAS B. BUCKNER, Respondent
• Court: Kansas Court of Appeals

157 S.W. 829

171 Mo.App. 384

C. K. BOWEN, doing business as THE KANSAS CITY VIEW COMPANY, Appellant, v. THOMAS B. BUCKNER, Respondent

Court of Appeals of Missouri, Kansas City

June 2, 1913

Appeal from Jackson Circuit Court.--Hon. Thomas J. Seehorn, Judge.

Reversed and remanded.

E. W Wright for appellant.

(1) The court erred in sustaining defendant's motion for change of venue. Eudaley v. Railroad, 186 Mo. 403; Guy v. Railroad, 197 Mo. 181; Priddy v. Raice, 201 Mo. (2) The court erred in sustaining defendant's motion to dismiss plaintiff's appeal. Conrad Co. v Spinks, 38 Mo.App. 309; Machine Co. v. Watson, 43 Mo.App. 338; Parks v. Talman, 113 Mo.App. 17; Express Co. v. Street Railway, 126 Mo.App. 471; Wagner v. Gray, 145 Mo.App. 543; Street Railway v. Express Co., 145 Mo.App. 371; Hose v Duncan, 50 Mo. 453; Beattie v. Hill, 60 Mo. 72; Fowler & Wild v. Williams, 62 Mo. 403; Davis v. Kline, 76 Mo. 310; Lilly v. Tobbin, 103 Mo. 489; Sheridan v. Nason, 159 Mo. 27.

John I. Williamson and Thomas B. Buckner for respondent.

Suits must be brought in the name of the real parties in interest. R. S. 1909, sec. 1724. The suit to be in the name of the real party in interest must be in their true names. Bliss on Code Pleading, Secs. 145, 146, and cases there cited. A civil suit or action can be commenced only by an actual, legal person existing at the time the suit is brought, and if not so brought it is an absolute nullity void ab initio and is incapable of amendment. Street Railway v. Express Co., 145 Mo.App. 371, and cases there cited. When a suit has been attempted to be brought but not by a legal person or not against a legal person, no new person by amendment can be made plaintiff or defendant after the statute of limitations has run. Jaicks v. Sullivan, 128 Mo. 177. The record shows the application for a change of venue was filed after the motion to dismiss had been submitted to the court, the evidence heard on said motion, that "Kansas City View Company" was not a corporation, the whole question argued and briefs submitted and the judge had anounced what his decision would be on the motion. Such a motion came too late. Junior v. Electric Power Co., 127 Mo. 79.

OPINION

JOHNSON, J.

--This suit was commenced July 27, 1910, before James H. Richardson, a justice of the peace for Kaw township, Jackson county, Missouri, upon an account. The statement filed by plaintiff was made out on a printed bill head of the "Kansas City View Co.," 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 Co.; that said suit was not brought by the real party in interest; and that the Kansas City View Co. 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:

"1st. Because this suit as appears by the record was originally instituted by the Kansas City View Co. which is not a legal being and is not possessed of the legal capacity to sue or be sued.

"2nd. Because the pretended amendment of the pretended cause of action is and was a nullity because not made as by law required.

"3rd. 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.

"4th. 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. 159; Lilly v. Tobbein, 103 Mo. 477, 15 S.W. 618; Courtney v. Blackwell, 150 Mo. 245, 51 S.W. 668; Cytron v. Transit Co., 205 Mo. 692, 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, sec. 19.] Now the rectifying the mistake in the name of a party, or bringing in a new party, in nowise 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. 403, it is said, "Where the declaration is in the name of a firm, if advantage is sought to be taken of the defect, it should be done by a suitable motion before the trial is closed, so as to give the parties an opportunity to amend. If no such motion is made and the case proceeds to judgment, the judgment will not be void but will be good after verdict."

To the same effect are the cases of Davis v. Kline, 76 Mo. 310; Lilly v. Tobbein, supra; Conrades v. Spink, 38 Mo.App. 309; Williams v. Kitchen, 43 Mo.App. 338.

In Sheridan v. Nation, 159 Mo. 27, 59 S.W. 972, the plaintiff, who had twice married, sued in her former name which she had resumed and had become known by. The court held that the action could be prosecuted in that name, saying, in part: "The statute requiring actions to be brought in the name of the real party in interest, is no prohibition against suits being brought in a name other than that by which one has been christened and has received from his or her parents, or that of the husband, where the party suing is a married woman. It was the real party in interest as he or she is known in the business world, and in courts where business differences are adjusted and settled, that the authors of the statute had in mind, when section 540, Revised Statutes 1869, was enacted, with...