Bush v. Serat

• Decision Date: 05 January 1920
• Docket Number: No. 13424.,13424.
• Citation: 217 S.W. 865
• Parties: BUSH v. SERAT.
• Court: Missouri Court of Appeals

217 S.W. 865

BUSH v. SERAT.

No. 13424.

Kansas City Court of Appeals. Missouri.

January 5, 1920.

Appeal from Circuit Court, Jackson County; William C. Thomas, Judge.

"Not to be officially published."

Action by B. F. Bush, receiver of the Missouri pacific Railway Company, against Seth S. Serat, doing business as the Star Coal Company. Judgment for plaintiff after overruling motion to dismiss amended petition, and defendant appeals. Affirmed.

A. F. Evans, of Kansas City, for appellant. Edw. J. White, of St. Louis, and Thos. Hackney, of Kansas City, for respondent.

BLAND, J.

Plaintiff brought suit in two counts to recover freight charges on coal transported for defendant. The suit was brought against the "Star Coal Company, a corporation." The petition alleged that the defendant was a corporation, organized and existing according to law. Summons was issued against the Star Coal Company, a corporation, and was served upon Seth S. Serat, who was alleged in the return to be the president and chief officer of said corporation. An answer was filed, alleged to be the answer of the Star Coal Company, in which said company denied it was a corporation and stated that—

"At all times mentioned or referred to in said petition Seth S. Serat, a natural person, was and now is engaged in business under the name of Star Coal Company and the sole owner thereof."

The answer was signed, "A. F. Evans, Attorney for Seth S. Serat, doing business as Star Coal Company." The answer was verified by the affidavit of Seth S. Serat in which was used again the language quoted. Thereafter plaintiff filed an amended petition against "Seth S. Serat, doing business as Star Coal Company, defendant." The allegations in the two petitions were the same, except that, instead of alleging the defendant to be a corporation, the amended petition alleged that defendant was, at all times mentioned in the petition, engaged in the buying and selling of coal under the name of Star Coal Company. Thereafter summons was issued directing the sheriff to summon "Seth S. Serat, doing business as Star Coal Company." The summons was duly served. Thereafter the defendant, Seth S. Serat, filed a motion to dismiss plaintiff's amended petition for the reason:

"That the suit was brought against a defendant alleged to be a corporation which, in fact, had no existence, and the attempt by amendment to name a defendant is unauthorized."

This motion was overruled, and, the defendant refusing to plead further, judgment was entered for plaintiff.

Defendant complains that the court erred in overruling this motion to dismiss. As we understand defendant's contention, it is that by virtue of sections 1794 and 1756, R. S. 1909, there was no cause of action instituted when the original petition was filed, in that the original petition did not name a natural Or artificial person as defendant therein, and that a suit against Seth S. Serat, an individual, could not be instituted by amendment. It is defendant's contention that it is not a question of suing the wrong party or of substitution of parties defendant, but that this is a case where an effort has been made to supply a defendant, to wit, Seth S. Serat, when none had before actually existed.

There is no question but that there must be proper parties plaintiff and defendant in order for there to be the institution of a suit and that a suit may not be instituted by way of amendment. Here, the cause of action, if changed at all, was changed only as to parties defendant and not in reference to the facts upon which the cause of action was based. We are unable to see that this controversy involves anything more than the identity of the defendant. Plaintiff at all times intended to sue this defendant, and made a mistake, not as to the party sued, but merely in describing what kind of an entity was to be sued. The amended petition contained nothing more than a designation of the individual who was in reality the original party sued as a corporation but who was in fact an individual and not a corporation. In the case of Ward v. Pine, 50 Mo. 38, the St. Clair Coal Mining Company, alleged in the petition to be a...