Buder v. Reller

• Decision Date: 01 October 1945
• Docket Number: 39183
• Citation: 190 S.W.2d 213
• Parties: O. E. Buder, Appellant, v. J. F. Otto Reller, Theodore L. Pepperling and D. A. Thomson, Trustees Under a Common Law Trust Known as Industrial Realty Trust Estate, Respondents
• Court: Missouri Supreme Court

190 S.W.2d 213

O. E. Buder, Appellant, v. J. F. Otto Reller, Theodore L. Pepperling and D. A. Thomson, Trustees Under a Common Law Trust Known as Industrial Realty Trust Estate, Respondents

No. 39183

Supreme Court of Missouri, First Division

October 1, 1945

From the Circuit Court of the City of St. Louis Civil Appeal Judge Wm. K. Koerner

Affirmed

OPINION

Van Osdol, C.

Action on promissory notes in aggregate principal sum of $22,660. Plaintiff has appealed from an order dismissing the cause.

The action was instituted November 15, 1934. In the style of the case, as stated in the caption of the original petition, the respondents herein were named as parties defendant and described, "Trustees under a common law trust known as Industrial Realty Trust Estate." The petition was in conventional form, stating in two counts causes of action in plaintiff as holder of the notes in due course and praying "judgment against said defendants" for the amount of the principal and interest of the notes. A general demurrer to the original petition was overruled January 28 1935, and defendants filed answer alleging that the notes were signed by defendants, not as individuals; but as trustees of a common-law trust; and that the plaintiff had "accepted said note(s) as the obligation solely of said Trust Estate, and not as the joint and several personal obligation of defendants." May 21, 1940 plaintiff-appellant amended the petition by interlineation alleging that defendants were trustees of a common-law trust known as Industrial Realty Trust Estate. As we shall see presently, the petition as originally filed and as amended by interlineation is not properly of record herein. On December 8, 1941, during the December 1941 term of the court, a demurrer was sustained to the petition as amended by interlineation. Plaintiff by leave filed amended petition January 19, 1944, during the regular December term, 1943, of the court; and January 20, 1944, defendants filed a motion to strike out the amended petition which was thereafter sustained March 21, 1944, during the regular February term. The motion to strike the amended petition was based upon the ground, among others, that the statement of the cause of action in the amended petition was a departure, and an attempt to state a different cause of action, from that stated in the petition as originally filed and as amended by interlineation.

A memorandum, filed by the trial judge, disclosed the court's theory in sustaining the motion,

"The statement in the caption of the original petition and the interlined amendments, that defendants are Trustees,

&c., is merely descriptio personae. Both before and after the amendments (by interlineation) the original petition stated a cause of action against defendants as individual. The amended petition contains the further allegation that defendants executed the notes sued on under authority vested in them as trustees. This changes the action from one against defendants as individuals to one against them as Trustees without personal liability. The original action is abandoned and in lieu thereof is sought to be substituted an action which, if it can be maintained at all, is but a preliminary step to another proceeding to subject the assets of the trust to the payment of the claim. - - -"

During its April term, 1944, the court ordered that plaintiff's action be dismissed, the order reciting that on the date thereof the plaintiff had elected "to stand upon his last amended petition" and had refused to plead further. The appeal was granted May 31st, during the same (April) term of the court.

Before addressing themselves to the argument on the merits of the appeal, defendants-respondents urge...