Bushnell v. Louisville & N. R. Co.

• Decision Date: 24 June 1907
• Court: Missouri Court of Appeals
• Parties: BUSHNELL v. LOUISVILLE & N. R. CO.

103 S.W. 1101

126 Mo. App. 63

BUSHNELL v. LOUISVILLE & N. R. CO.

Kansas City Court of Appeals. Missouri.

June 24, 1907.

1. JUDGMENT — DEFAULT — PENDING COMPROMISE.

A default judgment rendered at a time when a proposition to compromise was pending between the parties should be set aside.

2. JUSTICES OF THE PEACE — APPEAL — NEW PARTIES.

Rev. St. 1899, § 4077 [Ann. St. 1906, p. 2222], provides that the same cause of action, and no other, that was tried before the justice, shall be tried on the appeal, provided that new parties necessary to a complete determination of the action may be made in the appellate court. Section 4079 [Ann. St. 1906, p. 2223], provides for an amendment of the pleadings on appeal from a justice's court to supply any deficiency therein, when substantial justice will be promoted thereby; but no new cause of action shall be added by such amendment. Plaintiff sued in a justice's court a railroad to recover an overcharge of freight. On appeal by defendant to the circuit court, plaintiff filed an amended statement making three other railroads parties defendant, and averring as a joint cause of action against them that they all received the freight for transportation in cooperation with each other. Held, that since, under the statute, the joint liability also created a contract in severalty, plaintiff's remedy against the original defendant was complete, and the amendment was not permissible under said section 4077.

Appeal from Circuit Court, Jackson County; John G. Park, Judge.

Action by A. Bushnell against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

Wash Adams, for appellant. Joseph P. Fontron and Theodore C. Sparks, for respondent.

BROADDUS, P. J.

The cause originated in a justice's court. The action was against the Union Pacific Railroad Company alone, when plaintiff obtained judgment, from which said company appealed to the circuit court. The action was for money had and received for overcharge of freight by that company on three cars. After the case had gotten to the circuit court, the plaintiff filed an amended statement, making the Wabash Railroad Company, the Gulf & Ship Island Railroad Company, and the present defendant additional parties defendant, averring a joint cause of action against all the defendants; that is to say, that all the defendants received the merchandise as freight for transportation for hire along the lines of the respective railroads in co-operation with each other. The cars of merchandise consisted of lumber and were shipped from Lumberton, Miss., to different points in Kansas. Upon the filing of the amended petition, writs of summons were issued and served on all the new-made defendants except the Gulf & Ship Island Railroad Company, which was alleged to be a nonresident of the state, and the necessary proceedings were had so as to give jurisdiction as to that company. Before the return day of the summons, the general agent of the appealing defendant had a conversation with plaintiff's attorney in reference to a compromise of the case. As to what occurred the parties differ in some respects. There was nothing done in the case until the January term of the court for 1906, at which time plaintiff dismissed the case as to all the defendants except the present one, and took judgment by default against it for $158.76. In due time the defendant appeared and moved to set aside the default. The court overruled the motion, and defendant appealed.

The defendant contends that the court erred in overruling said motion. If there was a proposition to compromise pending between plaintiff's attorney and defendant's agent at the time the judgment was rendered, it ought to have been set aside. This, as a legal proposition, plaintiff does not deny. But he does deny that there was any compromise pending, and that the default was the result of defendant's negligence; but, as the judgment will be set aside for another reason, we will not consider that matter.

The most important question raised by defendant is that of the plaintiff's right to a judgment on the amendment in the circuit court making the defendant,...